Bench Memos

“McCain Would Appoint Judges, Obama Would Appoint Legislators”

My friend and former student, Pittsburgh attorney Lee DeJulius, nails it in this Pittsburgh Post-Gazette opinion piece.

. . .  Mr. McCain recognizes the dangers of unelected judges driving social policy based on their own personal beliefs. As he has explained, our democratic freedom is curtailed by such arbitrary acts and therefore “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.” Mr. McCain has vowed to appoint justices who follow that view of judicial restraint.

Mr. Obama, on the other hand, has stated that he will choose his judicial nominees based on their “heart” and “compassion.” In particular, he will appoint justices who have “the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African American, or gay, or disabled or old.” . . .

. . .  With potentially two or more justices to appoint, Mr. Obama would make the Supreme Court decidedly more liberal and more of a policy-making institution. Mr. Obama has one of the most liberal Senate voting records in recent history and every indication is that he would choose justices with a similar viewpoint and the will to impose it on the country.

With a Democrat-controlled Senate, Mr. Obama’s nominees virtually would be assured of being appointed without thorough vetting. A vote for Obama is not only a vote for change in the presidency, but also a vote for a more activist judiciary and for more liberal social policies in America for decades or more. This is not the type of change that America deserves.

My sense of the campaign season has been that the “judges issue” has — like several other winning issues, like Obama’s pro-abortion-rights extremism — been underemphasized. This is unfortunate. As a number of commentators have observed, a great many Americans will vote for Sen. Obama without anything like a full appreciation of what his election would mean, i.e., a dramatic shift to the left in terms of policy and, in the courts, an equally dramatic shift away from the appropriate understanding of the judicial role.


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