Do you like the idea of government seizing private land from its owner so another one can “improve” it? How about the prospect of government forbidding you from building on your own land if your property develops puddles after heavy rains? Or would you approve judges who overturn state legislatures in the United States so that they comply with court rulings in Europe? And do you think judges should force taxpayers to pay for abortions? If these sound like good ideas, then you’ll like the judges Barack Obama promises to appoint if he becomes president. If these approaches give you the creeps, John McCain deserves a long look because he promises to appoint a different kind of judge.
The truth is that on few bedrock issues do Obama and McCain differ more than on the proper role of federal judges. The Supreme Court justices Obama has held up as models all have indicated support for the positions outlined above. The judges McCain cites as his favorites oppose not only those positions, but also the twisted logic that produces such an approach to interpreting the Constitution. Put another way, if you like the liberals on the Court – Justices Breyer, Ginsburg, Souter and John Paul Stevens – Obama is your man. If the Court’s conservatives – Chief Justice John Roberts and Justices Scalia, Thomas and Alito – then McCain deserves your vote.
McCain’s record of principled moderation on judges matches perfectly his seminal statement on the issue in a November 2006 speech: “Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power. For that reason, a judge’s decisions must rest on more than his subjective conviction that he is right, or his eagerness to address a perceived social ill.”
Compare that with Obama’s repeated statement of the approach he thinks a judge should take: “Truly difficult cases” should involve “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 that pledge to put “empathy” above the letter of the law, he would have a judge directly contradict the oath of office, which reads: “I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform” all the duties of the office.
In 2005, McCain joined 13 other senators of both parties to find a way to break the Senate’s logjam on federal judicial confirmations, while Obama opposed the eminently qualified and widely praised John Roberts as Chief Justice. It is McCain who is clearly anchored in the mainstream and who will appoint judges to interpret the Constitution, not rewrite it or toss it away.
