Traditional Liberal, Conservative Labels Less Helpful, Says Purcell

Alexander Heffner Editor-in-Chief

Edward Purcell, Jr.
Solomon Joseph Distinguished Professor of Law, New York Law School

(1) In my view, there is relatively little "substantive" difference between Clinton and Obama, and probably less in terms of what either could do if elected president. Whatever differences there are, and I suppose there are some, they pale to near insignificance when contrasted with the views of the current Republican Party. I think both Obama and Clinton would be likely to appoint similar types to the bench and that the result of the Senate elections (and the size of the Democratic majority after 2008) is likely to be significant for either one, with the likelihood of more "liberal" appointees rising with the size of the Democratic majority.

(2) My guess is that McCain would find Alito-Roberts types attractive and would follow suit. Much, again, would depend on the composition of the Senate, the number of appointments he might have, and who was being replaced. It would also depend on a number of formally irrelevant factors (like the situation in Iraq and what groups he must court at any time for general support). It also may depend in some part on whether he seriously thinks he would run for reelection or whether he is thinking of serving just one term.

(3) For some issues like abortion, the stakes are equally high for both. To a large extent, however, it may be that the labels "liberal" and "conservative" are even less helpful now than before, for some of the most critical issues that will come before the Court in the next decade involve the excesses and abuses of executive power, and views on that issue may prove to be quite volatile if the White House changes hands and/or our foreign policy continues to be ineffective and self-defeating.

Read the rest of Scoop08's High Court Q&A Series:
Part 1: The High Court Q&A Series
Part 2: Klarman: Obama, Clinton Justices Would Have High Legal Credentials
Part 3: Stakes Much Higher for Dems, Says Lazarus
Part 4: Zywicki: Will McCain Make a Campaign Finance Reform Litmus Test?
Part 5: Traditional Liberal, Conservative Labels Less Helpful, Says Purcell
Part 6: Tushnet: One Appointment Could Change Court Dramatically
Part 7: Court Will Stay Far to Right, Says Lessig