Saturday, February 16, 2008

Goldwater Institute: McCain’s position on judges needs clarification

Slip of the Tongue

By Clint Bolick

Sen. John McCain, the probable Republican presidential nominee, has discovered that the fastest, surest, and best way to win over skeptical conservative voters is to promise to appoint conservative judges—a critical issue considering that several Supreme Court justices are likely to retire during the next administration.

But a close parsing of his words at last week’s Conservative Political Action Committee convention raises the question of exactly what type of “conservative” judges McCain would appoint.

McCain vowed to nominate judges who “take as their sole responsibility the enforcement of law’s made by the people’s elected representatives.”

Say again? It’s basic grade school civics that the executive branch enforces the laws, while the courts interpret them. Foremost among judges’ responsibilities is interpretation and enforcement of the Constitution, which all too often requires striking down laws that exceed the constitutional boundaries of executive and legislative power.

It is understandable that McCain, who as a senator has sponsored laws that strain those boundaries, might champion legislative hegemony. But those who cherish freedom must demand judges who take seriously their oath to place the Constitution above legislation.

McCain went on to say he would appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito “who can be relied on to respect the values of the people whose rights, laws, and property they are sworn to defend.” Odd wording, though slightly reassuring; more so is the fact that former U.S. Attorney General Bill Barr and Solicitor General Ted Olsen have joined his campaign team to advise on precisely those issues.

McCain’s voting record on judges has been sound; but if he is to earn the power to nominate them, he needs to speak clearly on what we can expect.

Clint Bolick is the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.

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