Politics & Policy

Judicial Promise

John McCain is driven by his sense of honor. Far more than most politicians, he prides himself on keeping his promises — and to make only promises that he can keep. His speech Tuesday on how he as president would approach the critical role of selecting judges therefore deserves special attention.

In his speech at Wake Forest University, McCain identified the battle over the proper role of the judiciary as “one of the defining issues of this presidential election.” Defending the Constitution’s separation of powers, he forcefully decried how the decades-long “common and systematic abuse of our federal courts” by judicial activists has usurped the power of the American people to address policy questions through the democratic process.

McCain drew a line between his own commitment to judges who will practice judicial restraint and Barack Obama’s and Hillary Clinton’s overt embrace of liberal judicial activism. Obama and Clinton, he observed in understated fashion, “don’t seem to mind when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives.” He criticized both Obama and Clinton for their votes against the nominations of Chief Justice Roberts and Justice Alito and for the philosophy of judicial activism that underlay their votes.

In terms of their “judicial ability, experience, philosophy, and temperament,” McCain cited both Roberts and Alito as “the model for my own nominees if that responsibility falls to me.” And, in what might be called a no-more-Souters, no-more-Miers pledge, he promised to nominate judicial candidates “with a proven record of excellence in the law, and a proven commitment to judicial restraint” — and not to rely on “a hunch, a hope, and a good first impression.”

The future direction of the Supreme Court is very much at stake in this November’s presidential election. The two or three justices most likely to depart the Court over the next four years — Justice Stevens, Justice Ginsburg, and possibly Justice Souter — are liberal judicial activists who routinely read their own policy preferences into the Constitution and who selectively regard their own favored precedents as sacrosanct. If a President Obama or a President Clinton names their successors, the slender operating majority on the Court for liberal activist results on most contentious political issues is likely to be preserved for at least another generation.

By contrast, a president committed to nominate, and fight for, justices who will practice judicial restraint offers real hope that the Court may soon be restored to its proper role in our constitutional system. In his speech today, John McCain has provided encouraging evidence that he would be that president.

One speech, of course, does not a campaign — or a Supreme Court appointment — make. John McCain needs to continue to make the case for judicial restraint and to draw the stark contrast between his views and his Democratic opponent’s on the proper role of the judiciary. If elected, he will need to populate key judge-picking positions — including the White House counsel and the attorney general — with experienced advisers committed to his stated goals. (We would rest easier if he threw out a few names now.) And he will need to be ready to devote a lot of political capital to defeat intransigent Democratic opposition in the Senate. Conservatives, for their part, need to do what we can to help McCain live up to his promises.


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