Barry and the Supremes

Trying, as always, to do my small part to ensure media objectivity, I present below an e-mail exchange I recently had with a JTA reporter on a topic that ought to rank very high on the issues agenda of Orthodox Jewish voters when casting their ballots this November: the nominations that the respective candidates are likely to make for vacancies on the United States Supreme Court.

Given that a) the Court’s decisions, and those of other federal courts, play a significant role in setting the moral tone in this country, and b) Justice Stevens is 88 and by January 2009 five other justices will be from 69 to 75 years old, it’s hard to overstate the importance of this topic. There’s a great deal to say about this, but let’s begin with the following exchange:

Dear Eric,

Now that you’ve returned from covering the nominating conventions, I’m hoping you’ll be kind enough to respond to an e-mail letter I sent you a few weeks ago regarding a piece you wrote for JTA entitled “Obama, McCain Spar Over Supreme Court.”

You contrasted McCain’s statement at the Saddleback forum that he wouldn’t have nominated any of the current four liberal justices, thereby — in the view of some Jewish activists — eliminating “a whole worldview from the justices’ deliberations,” with Obama’s mention of only Thomas and Scalia as justices whom he wouldn’t have nominated.

But surely the reason Mr. Obama didn’t mention the other two solid conservatives, Roberts and Alito, is because he actually did vote against their confirmation – one of only 22 senators, along with Joe Biden, to do so. Obviously, then, his opposition to them is not mere speculation but actual fact. In sum, it seems that Obama would just as quickly eliminate “a whole worldview from the justices’ deliberations.”

In addition, are these Jewish activists asserting that a President Obama, or any other liberal president, for that matter, would, if given the opportunity for multiple appointments, make sure to nominate some conservative jurists for the Supreme Court along with liberal ones, so as to preserve more than one “worldview” in the justices’ deliberations? Do you believe that to be likely, and if not, did you challenge these activists to substantiate that assertion in some way? And, wouldn’t it have been relevant for you to note to these activists and in your article that Mr. McCain was part of the “Gang of 14” Republican and Democratic senators who sought bi-partisan compromise on judicial nominations, while Mr. Obama declined to join in that effort?

Two more questions: 1) You refer to the Religious Action Center of Reform Judaism (RAC) as one that “generally stakes out liberal positions on domestic affairs.” I couldn’t come up with one instance in which the position they staked out on a domestic (or foreign) matter wasn’t a liberal position. Can you? 2) The RAC’s Mr. Pelavin told you that the liberal justices McCain mentioned “really represent centrist viewpoints, not classically liberal positions. . . ” Did he elaborate with examples, or can you?

I look forward to hearing back from you.


Eytan Kobre

Mr. Kobre,

Sorry I’m just responding to your e-mail now. It ended up in my spam
folder for some reason.

You make an interesting point about Obama’s voting against Roberts and
Alito, as well as McCain’s membership in the Gang of 14. They probably
should have been mentioned in the story.

Regarding the RAC, I have an example of a position they took (or actually
didn’t take) that wasn’t liberal. They did not oppose the Iraq war (they
didn’t favor it either, but staying neutral wasn’t the liberal position.)
They have since come out against it, but it took a few years.

As for your statement about Pelavin’s quote on “centrist viewpoints,”
here’s how he explained it. He compared someone like Breyer–who would be
classified as part the left wing of the court currently–to former judges
such as William Brennan and Thurgood Marshall. Legal scholars would agree
Brennan and Marshall were much more ideologicallly liberal than someone
like Breyer–who was considered more of a left-learning moderate when he
was nominated and hasn’t diverged greatly from that assessment. Ginsburg
and Stevens are on the left, but not in the same way that Brennan and
Marshall were. Meanwhile, one would certainly consider Scalia and Thomas
ideological conservatives in the same vein–but on the opposite end of the
spectrum–as Marshall and Brennan.

Thanks for your interest,
Eric Fingerhut


Thanks for your reply.

I must say I was taken aback by your response. The facts I apprised you
of — that Obama had voted to reject Roberts and Alito, while McCain worked
for bi-partisan compromise — simply render the entire premise of the first
five paragraphs of your piece untrue. And all this elicits is that they
“probably should have been mentioned”? For the sake of elementary fairness,
a correction appended to the piece online is more in order.

On the liberalism of RAC, 3 points: 1) You referred to its “generally
liberal positions on domestic affairs;” their position on Iraq doesn’t
qualify; 2) considering that a majority of the Senate’s liberal members
voted to invade Iraq, I don’t believe that, at the time, remaining neutral
could be described as not being a liberal position; perhaps not the
ultra-liberal position of those who opposed the war, but certainly a liberal
one; 3) I think you reinforce my point about the RAC when you need to reach
back 5 years to one policy position, which it has since retracted.

On Pelavin’s explanation of his remarks, we can go back and forth with
semantic arguments all day about the relative centrism of Breyer, et al, vis
a vis Marshall and Brennan. The bottom line is that I think a great many
informed observers of the court would find it risible to refer to Ginsburg
and Stevens, and perhaps the others as well, as centrists. Ultimately, this
is all relative to the commentator’s own political orientation — which is
why you ought to have given your piece more balance by quoting someone
contra Pelavin as well.

I look forward to your thoughts.



I haven’t yet heard back from Mr. Fingerhut. Stay tuned.

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16 Responses

  1. Ken Bloom says:

    McCain perhaps would not have personally nominated Breyer and Ginsburg, but he did vote to confirm them, when nominated by President Clinton.

  2. KRG says:

    You asked, “I couldn’t come up with one instance in which the position they staked out on a domestic (or foreign) matter wasn’t a liberal position. Can you?” And then told him his foreign affairs answer doesn’t qualify. Confusing, no?

  3. LOberstein says:

    Is it in the interests of the Jewish community to restrict abortion to those women whose religious beliefs allow it? Aren’t we better off if religion is kept private?

  4. Bob Miller says:

    The composition of the Supreme Court is extremely important in view of the powers the Court has been accumulating, often unconstitutionally, in recent decades. Obama can be trusted to put radicals on the Court if their Senate confirmation can’t be blocked. Ironically, the bipartisan judicial appointment compromise brokered by McCain and other Senators in his “gang” has preserved the filibuster as a tool for Republicans, too.

  5. Eytan Kobre says:

    To respond:

    Ken Bloom: Good point.
    KRG: To clarify — Mr. Fingerhut’s article referred to RAC’s “generally . . . liberal positions on domestic affairs.” In my e-mail to him,I simply added the foreign aspect for good measure. Thus, to justify his assertion, Fingerhut needed to supply a domestic example, which he did not.
    LOberstein: I not sure what you mean to say, or what religion has to do with this. Clarification?

  6. Ori says:

    LOberstein, AFAIK nobody is suggesting to restrict abortion based on the woman’s religious beliefs. It would be meaningless – she can always say she’s a Roman pagan, and therefore allowed to kill the baby even after birth.

    While people’s positions on the legitimacy of abortion can come from their religion, if they believe abortion is murder then it is murder for everybody, not just their coreligionists.

  7. Yehoshua Friedman says:

    I don’t really know what the proper public Jewish position on abortion should be. We can’t say that it should be what the halacha says for two reasons, first that the non-frum and non-Jewish public neither knows nor will be particularly friendly to a system which is intentionally opaque to them, and second, the legal criteria are not the same for Jews and non-Jews. As I understand the abortion of a fetus after 40 days is forbidden but not murder for a Jew but actually murder for a non-Jew. You just can’t say that. In the case when abortion is halachically permitted and sanctioned for a Jew, it might actually be murder for a non-Jew. Does anyone have an idea what we should be saying?

  8. LOberstein says:

    One thing about this election campaign that upsets me is the “bitul” the delegitimization of the other side. In this particular election, the Democrats are acting worse than the Republicans (unlike 4 years ago when the “swift boaters were for the Republicans). Gary Trudeau uses his comic strip to make Sarah Palin into a horrid carricature and it is on the editorial page as a valid opinion. Barak Obama is supported by some of the most intolerant elitists I have ever heard. The “Moral Majority” has been eclipsed by the liberal elitists who think that anyone who disagrees with them is sub human. I kid you not. The furor about Palin tells me a lot about her opponents. They have lost all sense of proportion, their arogance will do them in.

  9. Charles B. Hall says:

    The problem with abortion is that there are times when we think it is halachically mandated but some Christians think it is murder. And there are times when we think it is tantamount to murder while other Christians think it isn’t even a sin. There is no way to reconcile these positions.

  10. Sabba Hillel says:

    LOberstein #8

    I should point out that your use of the term “swift boaters” may not be correct. The way that the liberal media insist on defining the term is those people who use smears and lies to denigrate their opponents. The actual “swift boaters” were peopl who used the truth to point out the lies and hypocrisy of John Kerry, who was their opponent at the time.

    Thus, the Democrats, by using the lies and smears that they are currently propagating, are the exact opposite of “swift boaters”. They are more like Tammany Hall trying to get rid of Thomas Nast or Shabtai Tzvi’s supporters trying to smear the Rabbis.

  11. Toby Katz says:

    “McCain perhaps would not have personally nominated Breyer and Ginsburg, but he did vote to confirm them, when nominated by President Clinton.”

    Republicans long practised a civility almost unknown among Democrats, believing that all judicial nominations (of either party) should routinely be confirmed unless the nominees were demonstrably unfit for office, regardless of their political viewpoints. After the Borking of Bork by the Democrats, when the Democrats dropped all pretense of bipartisan civility, the Republicans have tended likewise to pay more attention to the actual judicial positions held by nominees and not just to their qualifications.

    McCain is still old school on this and still strives for bipartisan civility — one of the things that has made him a so-called “maverick” in his own party. He just keeps trying to play nice all the time (which all too often means pre-emptive surrender whenever a political battle threatens to heat up — a problem Bush has too, which is why he let government spending get so out of control on his watch).

    McCain “reaches across the aisle” and that’s why the MSM loved him and practically annointed him as the Republican nominee. Of course once they got him that position, they quickly turned on him. They preferred him to all the other Republican candidates in the primaries, but they sure as heck don’t prefer even the most maverick Republican to a liberal Democrat!

  12. Lawrence M. Reisman says:

    In reply to Toby Katz:

    The Republicans “Borked” Abe Fortas in 1968, based solely on his liberal political outlook. And the Democrats routinely approved, or did not oppose, many Reagan appointments of doubtful quality. The Democrats raised only token opposition to the appointment of Antonin Scalia. The Republicans just used Bork as an excuse to carry out their political agenda with regard to Clinton’s judicial appointments. It should be noted that Bork’s political opinions and judicial philosophy were probably the most extreme of any court nominee in the 20th century.

    By the way, “Borking” has precedents in the Republican party. The Republicans put up a very strong opposition to Brandeis’s nomination in 1914, based solely on his religion and politics. In the 1920s, Chief Justice William Howard Taft (a Republican as well as a Republican appointee) actively lobbied presidents Harding and Coolidge to prevent supreme court nominations of judges he felt were too liberal, such as Learned Hand and Benjamin Cardozo. (Cardozo finally made it onto the court after Taft died.)

  13. Reb Yid says:


    re: your claim of delegitimization of the other side. Ask yourself why a reported 15-20% of the US public still believes Obama is a Muslim (as if anything would be wrong with that to begin with), and who continues to spread these falsehoods.

    In terms of Palin–the GOP is trying to desperately shield her from the media–they have themselves to blame…combine that with her woebegone “meet and greets” at the UN, the Couric interview, etc…it’s no wonder they are trying to shield her. She makes Dan Quayle and W look like Rhodes Scholars…every passing week her ratings go down further and further, to no-one’s surprise.

    To think that McCain picked her as his VP candidate…besides casting doubts on McCain’s decision making, if by some chance McCain wins and God forbid he is incapacitated or worse, Heaven help us if Palin has to lead this country.

  14. Eytan Kobre says:

    To “Reb Yid”:

    I don’t know who is spreading rumors about Obama’s Islam roots, and frankly I don’t care. What you and the Obama campaign need to do is to stop cynically using that as a red herring on which to pin all the Jewish opposition to Obama. I oppose that man because his history,his worldview, his associations, his supporters and his own pronouncements indicate to me that he will stand aside as Israel is made the sacrificial lamb on Iran’s nuclear altar. Stop with the Muslim smokescreen.

    And on Palin, why don’t you just drop the pretense — and while you’re at it, the pseudonym — and come right out with it: The abhorrence for Palin that you and all the liberal elites display, is an abhorrence of my beliefs and lifestyle and most of the people at this site. They and I will survive that, but just drop the mask, will you?

  15. Reb Yid says:

    To Eytan Kobre:

    I don’t care one way or the other if Palin can dress a moose, what color lipstick she wears, if her unwed daughter is pregnant, if she went to 5 schools before she graduated, her religious beliefs, etc. I agree with others (and probably you) that the media has made an unnecessary and irrelevant circus about some of these “sideshow” issues.

    But as a potential Vice Presidential candidate, Palin’s inability to utter coherent or reasoned responses about basic questions (such as her foreign policy credentials, or a single Supreme Court decision that she disagreed with) are deeply upsetting and troubling. Did you watch the Couric interview? The follow-up to the Couric interview? Are you not concerned in the least bit that this individual could end up being our President? That, combined with ongoing legal and ethical issues she is facing, is completely legitimate as a reason to cast serious doubts on her competence as a leader of our nation–especially considering McCain’s age.

    The reason I mentioned the “Muslim” factor with Obama was in response to a different issue, which maintained that the media was being much nastier to the Republicans than the Democrats…it wasn’t intended as a reason to vote or not vote for Obama or McCain (and I agree with your point–one shouldn’t vote for a candidate just because s/he’s being smeared)…simply that Obama faces continued smears of his own.

  16. RM says:

    I’d worry more about Obama’s socialist roots, branches, and all the rest.

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