[Lobowolf]

Was listening on the radio at work, but had to miss a few minutes right after they were asked if they'd ever appoint a justice who disagreed on abortion. Caught McCain's answer; missed Obama's. Anyone?

[jdonn]

Here is the whole portion about that issue.

Schieffer: All right. Let's stop there and go to another question. And this one goes to Sen. McCain. Sen. McCain, you believe Roe v. Wade should be overturned. Sen. Obama, you believe it shouldn't.

Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Sen. McCain?

McCain: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.

Schieffer: But you don't want Roe v. Wade to be overturned?

McCain: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test.

Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion.

We got together seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative judges."

I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about.

Sen. Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

Schieffer: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

McCain: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

Schieffer: All right.

Obama: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people.

And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.

Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on.

But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.

I'll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.

For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently.

We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

Schieffer: Time's up.

McCain: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream.

Let me talk to you about an important aspect of this issue. We have to change the culture of America. Those of us who are proudly pro-life understand that. And it's got to be courage and compassion that we show to a young woman who's facing this terribly difficult decision.

Sen. Obama, as a member of the Illinois State Senate, voted in the Judiciary Committee against a law that would provide immediate medical attention to a child born of a failed abortion. He voted against that.

And then, on the floor of the State Senate, as he did 130 times as a state senator, he voted present.

Then there was another bill before the Senate Judiciary Committee in the state of Illinois not that long ago, where he voted against a ban on partial-birth abortion, one of the late-term abortion, a really -- one of the bad procedures, a terrible. And then, on the floor of the Illinois State Senate, he voted present.

I don't know how you vote "present" on some of that. I don't know how you align yourself with the extreme aspect of the pro- abortion movement in America. And that's his record, and that's a matter of his record.

And he'll say it has something to do with Roe v. Wade, about the Illinois State Senate. It was clear-cut votes that Sen. Obama voted, I think, in direct contradiction to the feelings and views of mainstream America.

Schieffer: Response?

Obama: Yes, let me respond to this. If it sounds incredible that I would vote to withhold lifesaving treatment from an infant, that's because it's not true. The -- here are the facts.

There was a bill that was put forward before the Illinois Senate that said you have to provide lifesaving treatment and that would have helped to undermine Roe v. Wade. The fact is that there was already a law on the books in Illinois that required providing lifesaving treatment, which is why not only myself but pro-choice Republicans and Democrats voted against it.

And the Illinois Medical Society, the organization of doctors in Illinois, voted against it. Their Hippocratic Oath would have required them to provide care, and there was already a law in the books.

With respect to partial-birth abortion, I am completely supportive of a ban on late-term abortions, partial-birth or otherwise, as long as there's an exception for the mother's health and life, and this did not contain that exception.

And I attempted, as many have in the past, of including that so that it is constitutional. And that was rejected, and that's why I voted present, because I'm willing to support a ban on late-term abortions as long as we have that exception.

The last point I want to make on the issue of abortion. This is an issue that -- look, it divides us. And in some ways, it may be difficult to -- to reconcile the two views.

But there surely is some common ground when both those who believe in choice and those who are opposed to abortion can come together and say, "We should try to prevent unintended pregnancies by providing appropriate education to our youth, communicating that sexuality is sacred and that they should not be engaged in cavalier activity, and providing options for adoption, and helping single mothers if they want to choose to keep the baby."

Those are all things that we put in the Democratic platform for the first time this year, and I think that's where we can find some common ground, because nobody's pro-abortion. I think it's always a tragic situation.

We should try to reduce these circumstances.

Schieffer: Let's give Sen. McCain a short response...

McCain: Just again...

Schieffer: ... and then...

McCain: Just again, the example of the eloquence of Sen. Obama. He's health for the mother. You know, that's been stretched by the pro-abortion movement in America to mean almost anything.

That's the extreme pro-abortion position, quote, "health." But, look, Cindy and I are adoptive parents. We know what a treasure and joy it is to have an adopted child in our lives. We'll do everything we can to improve adoption in this country.

But that does not mean that we will cease to protect the rights of the unborn. Of course, we have to come together. Of course, we have to work together, and, of course, it's vital that we do so and help these young women who are facing such a difficult decision, with a compassion, that we'll help them with the adoptive services, with the courage to bring that child into this world and we'll help take care of it.

[awm]

I really liked this Obama quote:

Barack Obama said:

But there surely is some common ground when both those who believe in choice and those who are opposed to abortion can come together and say, "We should try to prevent unintended pregnancies by providing appropriate education to our youth, communicating that sexuality is sacred and that they should not be engaged in cavalier activity, and providing options for adoption, and helping single mothers if they want to choose to keep the baby."

Politicians talk an awful lot about whether abortions should be legal. But they don't seem to talk much about how to prevent unintended pregnancies. It seems to me that with all the advances in birth control and medicine, in the modern world there really should be almost no unintended pregnancies. But sadly the religious right has pushed for so long the idea that knowledge is bad, that understanding birth control will encourage kids to have sex (or that seeing violence on TV will encourage them to be violent, or that learning about evolution in school will cause them to stop believing in god) that we have "abstinence-only" sex education classes (not to mention major religions which are opposed to effective birth control even for married couples). Statistical evidence indicates that these classes do not work in reducing teen pregnancies.

[luke warm]

on abortion, i think the difference between the two (apart from personal preference) boils down to whether or not it's a federal issue

[glen]

disclaimer: Canuck, watched debate but can't vote

I don't understand why the McCain camp decided to bring up Joe the Plumber. Several problems:

- Joe wants to make (net I gather) over $250K a year - most will consider this better off than they are and will not be concerned with Joe
- anybody who has had a large plumbing bill will not be impressed with a plumber that wants to maximize his income
- the video of Obama talking with Joe results in a 4:50 commercial for Obama, and McCain bringing up Joe will drive viewers to this video

[y66]

That Supreme Court question was a good one. McCain got off to a good start with his qualifications vs litmus test response. This was a genuine McCain moment and a plus I think for attracting voters who are still on the fence. But then he regressed in a way that so often undercuts the whole premise of his campaign, i.e., that he is his own man and not a Bush / Republican clone, when he shifted the discussion to ideologogically motivated (vs pragamatic, root cause solving) legisation.

I thought Obama came across more candidly than McCain, with his "no litmus test ... but" response and scored more points with independent voters with his "common ground" argument.

[jdonn]

The problem with the whole 'not litmus test' claim is this:

Quote

McCain: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

It doesn't matter what you call it, it's still a litmus test!

[pclayton]

awm, on Oct 15 2008, 11:57 PM, said:

I really liked this Obama quote:

Barack Obama said:

But there surely is some common ground when both those who believe in choice and those who are opposed to abortion can come together and say, "We should try to prevent unintended pregnancies by providing appropriate education to our youth, communicating that sexuality is sacred and that they should not be engaged in cavalier activity, and providing options for adoption, and helping single mothers if they want to choose to keep the baby."

Politicians talk an awful lot about whether abortions should be legal. But they don't seem to talk much about how to prevent unintended pregnancies. It seems to me that with all the advances in birth control and medicine, in the modern world there really should be almost no unintended pregnancies. But sadly the religious right has pushed for so long the idea that knowledge is bad, that understanding birth control will encourage kids to have sex (or that seeing violence on TV will encourage them to be violent, or that learning about evolution in school will cause them to stop believing in god) that we have "abstinence-only" sex education classes (not to mention major religions which are opposed to effective birth control even for married couples). Statistical evidence indicates that these classes do not work in reducing teen pregnancies.

I hope that he means this. Abortion all too often comes down a 'lithmus test'. Politicians like Barbara Boxer run their entire campaign on issues like this and I think its despicable.

[helene_t]

luke warm, on Oct 16 2008, 11:10 AM, said:

on abortion, i think the difference between the two (apart from personal preference) boils down to whether or not it's a federal issue

Then we have the question if states with legal abortion can allow clinics in their jurisdiction to perform abortion on women from non-abortion states. I think it would be a legal mess to try to prevent it. OTOH I can imagine anti-abortion people in the non-abortion states would feel kinda screwed if it just meant that the business moved across the border.

[pclayton]

helene_t, on Oct 16 2008, 07:56 AM, said:

I can imagine anti-abortion people in the non-abortion states would feel kinda screwed if it just meant that the business moved across the border.

LOL, there is the commerce aspect I suppose.

This isn't any different than living in Vancover, WA (Washington). You get the benefits of no State income tax in WA, but you can cross the Columbia River and shop in Oregon where there is no sales tax.

[Lobowolf]

helene_t, on Oct 16 2008, 10:56 AM, said:

luke warm, on Oct 16 2008, 11:10 AM, said:

on abortion, i think the difference between the two (apart from personal preference) boils down to whether or not it's a federal issue

Then we have the question if states with legal abortion can allow clinics in their jurisdiction to perform abortion on women from non-abortion states. I think it would be a legal mess to try to prevent it. OTOH I can imagine anti-abortion people in the non-abortion states would feel kinda screwed if it just meant that the business moved across the border.

That's a non-issue. They'd certainly be permitted to (and just about as certainly, required to). Similarly, Nevada doesn't check for state I.D.'s to let you gamble.

[Lobowolf]

Josh -

Thanks for posting that lengthy excerpt.

[kenberg]

One issue pressed by McCain was the role of the Senate in confirming Supreme Court nominees. By citing Breyer and Ginsburg, McCain presented evidence that he would as a senator accept the right of the president to have a qualified candidate of the president's choosing be placed on the court, even if he, McCain, disagreed with the nominee's judicial philosophy. By citing Obama's rejection of Roberts and Breyer, McCain made a plausible case that Obama regards it as the Senate's prerogative to reject a nominee on ideological grounds. Whichever position you support, it's an important distinction. For example, if Obama wins the election and if Democrats have over 50 but fewer than 60 senators, I can well imagine Obama wishing that the Senate would accept his nominee on the grounds that he and his Senate majority have a right to the qualified candidate of their choice and regret any idea that those who oppose the nominee on ideological grounds must do whatever they can to derail the nomination.

I also thought the debate brought out a difference in approach to the Constitution, although I, perhaps cynically, often see these differences as floating back and forth with the issue at hand. McCain said that he thought Roe v Wade was badly decided. Obama said that he thought the Constitution supports a right of privacy. This is an ongoing philosophical argument. I have not reviewed the Constitution, but I think the following two observations are true: The word privacy does not appear, and the Constitution along with the first ten amendments taken as a whole supports the idea that government should not meddle in private matters. McCain was, at least in this matter, emphasizing the literal reading, Obama the interpretative. Again, it's important.

So the exchange was, I thought, substantive.

[PassedOut]

Even though she says she doesn't want it, I wouldn't be surpised to see Hillary Clinton nominated to the supreme court. She would surely get votes from republican senators.

[Al_U_Card]

PassedOut, on Oct 16 2008, 12:53 PM, said:

Even though she says she doesn't want it, I wouldn't be surpised to see Hillary Clinton nominated to the supreme court. She would surely get votes from republican senators.

Hilary as SCJ instead of Veep....scarier for us but safer for Obama

[Lobowolf]

kenberg, on Oct 16 2008, 12:36 PM, said:

One issue pressed by McCain was the role of the Senate in confirming Supreme Court nominees. By citing Breyer and Ginsburg, McCain presented evidence that he would as a senator accept the right of the president to have a qualified candidate of the president's choosing be placed on the court, even if he, McCain, disagreed with the nominee's judicial philosophy. By citing Obama's rejection of Roberts and Breyer, McCain made a plausible case that Obama regards it as the Senate's prerogative to reject a nominee on ideological grounds. Whichever position you support, it's an important distinction. For example, if Obama wins the election and if Democrats have over 50 but fewer than 60 senators, I can well imagine Obama wishing that the Senate would accept his nominee on the grounds that he and his Senate majority have a right to the qualified candidate of their choice and regret any idea that those who oppose the nominee on ideological grounds must do whatever they can to derail the nomination.

I also thought the debate brought out a difference in approach to the Constitution, although I, perhaps cynically, often see these differences as floating back and forth with the issue at hand. McCain said that he thought Roe v Wade was badly decided. Obama said that he thought the Constitution supports a right of privacy. This is an ongoing philosophical argument. I have not reviewed the Constitution, but I think the following two observations are true: The word privacy does not appear, and the Constitution along with the first ten amendments taken as a whole supports the idea that government should not meddle in private matters. McCain was, at least in this matter, emphasizing the literal reading, Obama the interpretative. Again, it's important.

So the exchange was, I thought, substantive.

McCain misspoke, btw; it was Roberts & Alito whom Obama rejected. Breyer was an early Clinton appointee, long before Obama was in the Senate.

[kenberg]

I was wondering but I didn't check it. There was another place where Obama clearly misspoke. Something about the necessity of enforcing bad rules or bad agreements. I assume no one holds a speaker to such things. We all stumble over our tongues at times (although Obama is certainly better than most at avoiding this).

[TimG]

kenberg, on Oct 16 2008, 12:36 PM, said:

Obama said that he thought the Constitution supports a right of privacy.

The word privacy does not appear, and the Constitution along with the first ten amendments taken as a whole supports the idea that government should not meddle in private matters.

I believe you are correct that the word "privacy" does not appear. But, to suggest that Obama is making an interpretive leap when he says he thinks the Constitution "supports a right of privacy" is, I think, wrong.

MW online gives as one definition of privacy "freedom from unauthorized intrusion". Article IV of the Constitution starts "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". It is true that Obama did not use the exact words of the Constitution, but what the Constitution says is the very definition of "privacy". Obama used one word where the Constitution used seventeen and he might well have said it differently if he was writing a Law Review article, but I don't think it amounts to "interpretation" in the sense that you seem to mean; Obama's use of "privacy" is the literal meaning of the passage in the Constitution.

[kenberg]

I already can see I will be paying off on a bet favoring McCain, but I think I would be willing to place another bet that Hillary Clinton will not be placed on the Supreme Court in the next four years. I am generally a supporter of both Clintons but judicial temperament is not a phrase that comes to mind when I think of Hillary. Of course it doesn't come to mind when I think of Scalia either.

[Lobowolf]

TimG, on Oct 16 2008, 01:45 PM, said:

kenberg, on Oct 16 2008, 12:36 PM, said:

Obama said that he thought the Constitution supports a right of privacy.

The word privacy does not appear, and the Constitution along with the first ten amendments taken as a whole supports the idea that government should not meddle in private matters.

I believe you are correct that the word "privacy" does not appear. But, to suggest that Obama is making an interpretive leap when he says he thinks the Constitution "supports a right of privacy" is, I think, wrong.

MW online gives as one definition of privacy "freedom from unauthorized intrusion". Article IV of the Constitution starts "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". It is true that Obama did not use the exact words of the Constitution, but what the Constitution says is the very definition of "privacy". Obama used one word where the Constitution used seventeen and he might well have said it differently if he was writing a Law Review article, but I don't think it amounts to "interpretation" in the sense that you seem to mean; Obama's use of "privacy" is the literal meaning of the passage in the Constitution.

The application of this view of "privacy" is not a factor in the abortion debate. The argument has not been that laws banning abortion constitute an unreasonable search & seizure. BTW, your citation is to the 4th Amendment of the Constitution, not Article IV.

"Privacy" with respect to the abortion debate is inferred from a variety of sources in the various amendments to the constitution (and in a previous case, Griswold v. Connecticut, which was not an abortion case). It's not Obama's interpretive leap, it was the Supreme Court's in Roe v. Wade, but he does ascribe to the decision, and it was certainly a creatively constructed decision, even if it's one that you agree with.