The Ledbetter case illustrates the difference between Obama and McCain when it comes to judges. Obama sharply criticized the decision, saying the conservative justices ignored new discrimination she suffered with each unfairly low paycheck. McCain defended the decision and called it a defeat for trial lawyers who sought to sue companies.
When Obama voted against Alito's confirmation, he predicted the New Jersey judge would rule on the side of corporations. "If there is a case involving an employer and an employee, and the Supreme Court has not given clear direction, he'll rule in favor of the employer," Obama said a year before the court took up the Ledbetter case.
(The House passed a bill to overturn the Ledbetter decision, but it stalled in the Senate last month: Supporters fell just short of the 60 votes needed to halt a threatened Republican filibuster. Obama and Clinton voted to amend the law; McCain said he was opposed.)
Before his election to the Senate, Obama taught constitutional law at the University of Chicago. He said most cases, even those at the high court, could be decided by looking at the law and precedents.
"Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time," he said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.
"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
In a speech this month, McCain derisively quoted Obama's reference to a judge's "deepest values" and "empathy." "These vague words attempt to justify judicial activism. Come to think, they sound like an activist judge wrote them," McCain said.
Many conservatives praised McCain's focus on a limited role for the courts.
"Much as I like and respect Barack, I think his vision of judging couldn't be more wrong," said Bradford Berenson, a Washington lawyer who worked in the current Bush White House and knew Obama at Harvard Law School. "Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution . . . and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help."
Harvard Law School professor Laurence H. Tribe, who is an advisor to Obama, said McCain's speech "relied on simplistic and misleading slogans about judicial activism."
"Sen. Obama certainly doesn't share Sen. McCain's remarkable view that the greatest threat to American values and traditions comes from our independent federal judiciary," Tribe said. "On the contrary, Sen. Obama would find it crucial to preserve judicial independence in part to hold in check the excesses of unilateral executive power that have threatened our democracy under the Bush-Cheney administration."
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david.savage@latimes.com
