05/13/2008 09:57 am ET Updated May 25, 2011

McCain and the Courts

Last Tuesday John McCain gave a public address about the kind of Supreme Court justices he would nominate if elected. The speech, given in North Carolina, was a failed attempt to grab at least a few headlines while all eyes were turned to the all important May 6th primaries. But with Barack Obama's game-changing -- if not game-ending -- victory that evening, most of McCain's comments were lost to the news cycle, as has been the case for most of the past three months.

Still, McCain's comments are important. With so many Clinton supporters suggesting they would rather vote McCain than Obama, few issues could be more central than McCain's judicial philosophy. As we saw on Tuesday, though unsurprising, his views underscore yet another example of the McCain of 2000 withering into an unrecognizable and incoherent McCain of 2008. McCain said he would appoint judges in the same mold as Roberts and Alito, arguing that, "The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it."

It is hard to understand what John McCain, or others that repeat similar phrasing, could possibly mean by such a statement. Our justice system is based largely on common law, case law in which justices make decisions that do, in fact, become the law. One cannot interpret the law without making it. A judge, no matter his philosophy, when presented with a case in which the law is not explicit, will have to glean from somewhere other than the Constitution what the law ought to be. Even Justice Antonin Scalia must participate in such a practice. The distinction between strict constructionist and activist is a political one more than it is a legal one.

McCain's formulation seems to indicate that though he knows what the Republican talking points are, he does not fully understand what they mean. Where, for example, in the Constitution does he expect to find the phrase, "separation of church and state"? Where in the Constitution does he expect to find the tenet that "separate but equal is inherently unequal"?

And more importantly, what does he expect of judges like Roberts and Alito when confronting his own policy agenda? It was, after all, the Roberts court that stripped a key portion of the McCain-Feingold Act in 2007, a law which, though it may come as a surprise to John McCain, was co-sponsored by John McCain. What would he say of strict-constructionist William Rehnquist, who, writing for the majority, held that, because the Constitution did not explicitly authorize it, Congress could not prohibit guns in schools? How would such a decision resonate with McCain voters in Colorado or Arkansas or Virginia?

Given that the Warren Court was seen as an activist court and Brown v. Board of Education an activist decision, ought we expect McCain to believe that the federal government has no authority to require integration of our schools? Surely, Rehnquist thought so when he wrote a dissenting memo about Brown for the Supreme Court justice he was clerking for at the time. And he is not alone. In a recent anti-segregation case, Roberts struck down a voluntary plan by the Seattle School District to integrate their schools, arguing that there is no state interest in diversity. Such a decision is by its very definition an example of judicial activism: Roberts took action based not a clause of the Constitution, but on his belief that he knew better than the states.

And what about Roberts' dissent in Massachusetts v. EPA, in which he argued that the EPA cannot be challenged by the states to regulate carbon emissions without definitive proof of injuries caused by climate change? In other words, the EPA need not do anything about global warming. How does such a decision square with John McCain's climate change tour?

Unless he is comfortable with justices overturning some of his pet policies, it must not be, as he claims, that John McCain is seeking strict-constructionists to the court. Rather, he is simply using a phrase that he clearly doesn't understand as code to suggest that he is not seeking justices of a specific philosophy; instead he wants judges who will further his right wing ideology.

There are few people in Washington older than John McCain. But among them are four of nine Supreme Court justices. In such a political environment and with so much at stake, including the rights to privacy and choice, will Hillary supporters really choose John McCain?

Such a spiteful decision would mean generations of unimaginable consequences.