On CNN’s website today, legal analyst Jeffrey Toobin laments out how small a role the Supreme Court has played in the presidential election so far. He writes :
With a little more than a month to go, it's not too late to ask the candidates to take a stand on their plans for the court. The president has already had two appointments, and he named Sonia Sotomayor and Elena Kagan. But what does Obama, a former law professor, think about the court? Does he believe in a "living" Constitution, whose meaning evolves over time? Or does he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.
By the same token, what kind of justices would Romney appoint? Who are his judicial role models? Romney has praised Chief Justice John Roberts, but is the candidate still a fan even after the chief voted to uphold the ACA?
No one is asking these questions. But there are few more important things to know about our current and future presidents.
Toobin is absolutely right that the candidates’ plans for the Supreme Court deserve a lot more air time than they’re getting. But he’s wrong to suggest that we know nothing about what President Obama and Governor Romney have in mind for the Court.
President Obama has already picked two Supreme Court justices. Both, Sonia Sotomayor and Elena Kagan, have been strong moderates, balancing out the retro extremism of Justices Scalia and Thomas. When female Wal-Mart employees wanted to band together to sue their employer for pay discrimination, Sotomayor and Kagan stood on the side of the women’s rights , while Scalia and Thomas twisted the law to side with the corporation. When Justices Thomas and Scalia ruled that a woman harmed by a generic drug couldn’t sue the drug’s manufacturer in state court, Justices Sotomayor and Kagan stood up for the rights of the consumer .
Mitt Romney obviously hasn’t had a chance to pick a Supreme Court justice yet, but he’s given us a pretty good idea of who he would choose if given the opportunity. On his website, Romney promises t o “nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.” After the Supreme Court’s ruling in the health care reform case, Romney announced he had changed his mind  about Roberts, who declined to destroy the law while still writing a stunningly retrogressive opinion  redefining the Commerce Clause.
And, of course, Romney sent a clear signal to his conservative base when he tapped Robert Bork to advise him on legal and judicial issues. Bork’s record, and what he signals about Romney’s position on the Supreme Court, is chilling:
Romney’s indicated t hat he would want the Supreme Court to overturn Roe v. Wade. He’s even attacked the premise of Griswold v. Connecticut , the decision that prohibited states from outlawing birth control by establishing a right to privacy.
Yes, the candidates should be made to answer more questions about their plans for the Supreme Court and the lower federal courts. But there’s a lot that we already know.
(For more, check out PFAW’s website RomneyCourt.com .)