The issue of judicial philosophy has been mostly overlooked in this campaign, but the differences between the two candidates are stark: Obama has the most left-wing position of any presidential candidate in U.S. history.
Obama has said he would appoint Supreme Court justices like Ruth Bader Ginsburg and David Souter, two of the most liberal judges ever to serve on the Court. (Before her appointment, Ginsburg had served as general counsel of the American Civil Liberties Union, and as a member of the ACLU Board of Directors.) He openly criticized Justice Clarence Thomas. He said he would never appoint someone like Justice Antonin Scalia. He voted against both Chief Justice John Roberts and Justice Sam Alito during their Senate confirmations.
McCain, by contrast, has said he would appoint justices precisely like the most recent conservative nominees, Roberts and Alito. McCain voted for Thomas during a fierce Senate fight that confirmed him 52-48. McCain also voted to confirm Scalia.
The dramatic differences between McCain and Obama on judges go all the way to the most basic questions. McCain has taken the conservative view (called strict constructionism) that judges should apply the law and Constitution as written. A conservative judge will do this without regard to his policy preferences. Liberal judges, by contrast, are activists who make up laws from the bench, regardless of what the written law or Constitution actually says.
Obama has said quite explicitly that judges should look at the social impact of their rulings, not just the law as written. He has said he would appoint judges who, beyond objective legal expertise, would have empathy in their rulings for an unwed pregnant teenager, or a gay man suffering from AIDS, or a homeless woman with nowhere else to turn.
These philosophical disagreements are so important because the Court’s balance hangs by a thread: It is split down the middle with four conservatives, Scalia, Thomas, Roberts, and Alito, and four liberals, Ginsburg, Souter, John Paul Stevens, and Stephen Breyer. In the middle is Justice Anthony Kennedy. Five of the Justices are over the age of 70, including Scalia and Kennedy (both 73). Fox News analyst Peter Johnson suggests that the next president is likely to make at least three appointments.
As it is now, the four conservative votes can only win when Kennedy decides to join them. If any one of these five seats is lost to a consistent liberal — and Obama is likely to appoint the most liberal judges ever — the conservatives would no longer be able to form a majority except on cases where at least one liberal joins them.
(Liberals find themselves in a similar position: Stevens is 88, Ginsburg 75 and reportedly in bad health. If these Justices were replaced by two conservatives like Roberts and Alito, we would have a conservative majority on the Court for the first time since the 1930s.)
Not only would a liberal majority wreak havoc in new areas in law, it could undo recent successes. In this year’s D.C. v. Heller, the Court recognized that the Second Amendment protects the right of individual citizens to keep and bear arms, and struck down the handgun ban in the nation’s capital. Liberals had argued for decades that the Amendment only protects the right to bear arms in connection with militia duty.
In Gonzalez v. Carhart, the Court upheld the federal ban on partial-birth abortion passed in 2003 under President Bush and a Republican Congress. Previously, federal courts had found all prohibitions on this procedure unconstitutional.
Besides Supreme Court justices, a president appoints hundreds of judges to the lower federal courts. Obama would replace retiring Reagan and Bush I appointees with ACLU zombies.
Electing McCain won’t solve everything with regard to judges — he’d have to get his appointments through the Senate, which Democrats are likely to control. But it would go a long way toward keeping the nation’s courts on something like the right track.
– Peter Ferrara is general counsel of the American Civil Rights Union, and director of entitlement and budget policy for the Institute for Policy Innovation. He served in the White House Office of Policy Development under President Reagan and as associate deputy attorney general of the United States under the first President Bush.