Debate: Difference of principles on judiciary

posted at 9:40 am on October 16, 2008 by Ed Morrissey

Occasionally, and not nearly enought to justify them, presidential debates highlight actual and honest differences in principle between candidates so clearly that voters cannot miss the difference between them.  One such moment occurred last night in the exchange on the judiciary.  Bob Schieffer’s question on judicial appointments produced honest answers from both John McCain and Barack Obama.  McCain believes in judges applying the law, while Obama believes in judges creating the law.

McCain gave a clear answer in favor of strict constructionism:

They should be judged on their qualifications. And so that’s what I will do.  I will find the best people in the world — in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

Obama, on the other hand, endorsed judicial activism:

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Except, of course, that’s not their job.  Judges have the task of applying the law as promulgated by coordination between the elective branches of government, the legislature and the executive.  That responsibility does not rest with the one branch of government unaccountable to the voters.  That design intends to keep the US from being ruled by lifetime-tenured star chambers with no recourse left available to the electorate.

Let’s take Obama’s example, the case of Lily Ledbetter and her equal-pay suit.  Congress passed a law that had a statute of limitations for filing claims, which almost all laws have.  Ledbetter did not meet that requirement and had her suit dismissed.  One can argue that the law wasn’t written properly — opinions vary on that point — but the judge and the appellate courts followed the law as Congress passed it and as the President signed it.  Instead of having Congress be responsible for their arguably poor legislation, Obama wants judges who will simply rewrite the law to suit their own opinion of fairness and justice.

That undermines the entire notion of representative government.  Our system works because we create the laws under which we live, through our elected representatives.  If they pass bad laws or fail to pass good laws, they have to answer for that in elections on a regular basis.  What Obama proposes is to have judges create laws rather than elected representatives — judges who were not elected and who have no accountability to the people that they would rule in such a system.

Judicial activism distorts representative democracy and the legitimacy of self-government.  Barack Obama wants it, though, because he believes that he can achieve ends through judicial activism that he can’t get through the democratic process.  It’s anti-democratic at its core, and while Obama is clearly not the only advocate of this philosophy, he may be the most explicit supporter ever to get this close to the power to appoint those judges.


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Comments

Hey, Barrack is just doing his thug thizzle antichrist izzle.

Mojave Mark on October 16, 2008 at 9:42 AM

Dear God please help us.

Akzed on October 16, 2008 at 9:43 AM

I thought for sure this (5 photos down) would be the headline in all the MSM papers today.

abinitioadinfinitum on October 16, 2008 at 9:43 AM

McCain could have brought up Biden’s admission boast that he led the fight against some great justices, especially Bork.

jgapinoy on October 16, 2008 at 9:43 AM

Bingo!!!!

I can’t believe this is the first time anyone has brought this up:

Obama can appoint 3 supreme court judges and scores of federal judges with no “vetting” from a Dem controled Senate and Congress.

Obama can damage this country for DECADES

Agent of the Cross on October 16, 2008 at 9:46 AM

I’m kind of hungry this morning, doesn’t the constitution contain a right to free McDonald’s breakfast? I sure could use some help…

NeoconNews.com on October 16, 2008 at 9:46 AM

abinitioadinfinitum on October 16, 2008 at 9:43 AM

Your link reveals BO’s early mega-ambition as well as a propensity for vandalism.

jgapinoy on October 16, 2008 at 9:46 AM

You’re “En Fuego” Ed…Great post

elraphbo on October 16, 2008 at 9:47 AM

Excuse me, Senator Obama: Why do judges swear, when taking office, to uphold the Constitution?

If they can look elsewhere for guidance on their decisions, why do we even have a written Constitution?

Hell, if judges can look outside of the Constitution for their decisions, I guess presidents and legislators can too.

And the left says that the Bush Administration is ignoring the Constitution?

SteveMG on October 16, 2008 at 9:48 AM

Now how can you expect to have a proper thugocracy without an activist USSC.

petefrt on October 16, 2008 at 9:48 AM

Dear God please help us.

Akzed on October 16, 2008 at 9:43 AM

I fear that God is judging us, or perhaps disciplining us.

jgapinoy on October 16, 2008 at 9:50 AM

What was McCain talking about, during this debate and first one, when he mentioned training programs for “displaced workers”? In the first debate he said: “For workers in industries that have been hard hit, we’ll help make up part of the difference in wages between their old job and a temporary, lower paid one while they receive retraining that will help them find secure new employment at a decent wage.”
If people get laid off, then they need to find themselves another job. If folks are laid off, that means that the supply of workers in that particular industry is too high. But you know what? Supply in another industry is likely very low, so they can get a job there. Why should I, as a taxpayer, have to pay someone to get more qualifications for another job? And why should I pay the difference, as a taxpayer, in the wages for that person’s old job compared to their new “temp” job?
Not to mention, these artificial changes in the dynamics of the market would have serious impacts on the job market as well. (A) Competition for higher paying jobs would dwindle. Why work harder or smarter to move up or to a “better” job when you can get paid the same wages for doing less? (B) More workers would seek jobs in certain industries than others despite what the market demands dictate, creating an artificial market for workers in certain industries (i.e. too many workers flocking to gov’t-favored industries vs. market favored industries). This is no different than the problems with government subsidies.
Lastly, how is any of this Constitutional? Not that this matters much to most politicians, it does matter to me.

Send_Me on October 16, 2008 at 9:50 AM

jgapinoy on October 16, 2008 at 9:46 AM

Good comment, thats a scary link, huh?

abinitioadinfinitum on October 16, 2008 at 9:51 AM

Get ready for the nation’s first transgendered judge.

whitetop on October 16, 2008 at 9:52 AM

Dear God please help us.

Akzed on October 16, 2008 at 9:43 AM

I echo the same sentiments. It is scary that Obama if elected could choose up to 3 judges!!! The Supreme Court already has 5 liberal judges. We don’t need this country to sink into the abyss.
PLEASE PEOPLE VOTE MCCAIN/PALIN!!

jencab on October 16, 2008 at 9:52 AM

I echo the same sentiments. It is scary that Obama if elected could choose up to 3 judges!!! The Supreme Court already has 5 liberal judges. We don’t need this country to sink into the abyss.
PLEASE PEOPLE VOTE MCCAIN/PALIN!!
jencab on October 16, 2008 at 9:52 AM

1. McCain supports judges like Ginsburg, Breyer, and O’Connor. How do I know? By his deeds. He voted to confirm the first two and went out of his way to speak nothing but praises at O’Connor’s retirement.
2. If you really want to stop these sorts of judges from getting confirmed, or if you want to stop socialism, or wish to halt amnesty, then you’ll focus on the Congressional elections. They are the ones with the power to do these things. If neither major party candidate wishes to help, then we need to focus on the one branch of government that still has some malleability.

Send_Me on October 16, 2008 at 9:58 AM

I think McCain missed a helluva chance at ringing Obama’s bell on this question. I can’t run down the article right now (I think maybe it was Geraghty over at NRO), but I’m pretty sure I read the stat that Obama pays his female staffers $.87 for every male dollar, and that McCain pays his female staffers $1.04 for every dollar a male earns.

It would have been a gut punch if McCain had first stated that he doesn’t support judicial activism, and then followed it up by saying that Obama’s own example proves him to be a hypocrite on the equal pay issue. Something to the effect of, “If you’re so concerned about equal pay that you would hope to see judges legislate from the bench, then maybe you should set the example in your office first.” The PUMAs would have eaten it up – the enemy of my enemy is my friend, and all that.

Flyover Country on October 16, 2008 at 9:59 AM

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Good God….is this for real? Who the fluck is going to define “unfair”? What if two people appear before the court who are blaming the other for unfairness, then what?

Now the SCOTUS has become arbitrator of schoolyard-type altercations? Billy got to be pitcher more times than me and that’s not fair!

Holy shit, maybe there really is another revolution coming.

Bishop on October 16, 2008 at 10:00 AM

Dear Jencab,

Replacing 3 liberal judges with 3 liberal judges does not upset the balance on the court. 3 – 3 = 0.

That said, who is to say that in a McCain presidency strict constructionist judges will not be Borked?

InTheBellyoftheBeast on October 16, 2008 at 10:01 AM

Holy shit, maybe there really is another revolution coming.

Bishop on October 16, 2008 at 10:00 AM

Ya think?

My circle has been chattering about that since Mac got the GOP nod.

InTheBellyoftheBeast on October 16, 2008 at 10:02 AM

The left has co-opted the Western principle of Justice and has produced a cartoon version of it in order to seize power.

Justice is the right of a person to get his due. It means if he enters a contract, he has the right to expect the other person to adhere to it, if he gives his word to do something, he has a responsibility to do it, if he wrongs someone, he has a responsibility to correct the wrong.

Justice today is understood as “your right to have something that is not yours.” Which of course is the 180 degree opposite of classical Justice. The syllables are the same, and a good rhetorician can sound elevated when he pronounces them. But that man’s not talking about actual Justice.

Why did we let them rape our civilization? Who the hell stood by and let these people take our Universities, our Churches, and our Courts?

jeff_from_mpls on October 16, 2008 at 10:05 AM

Agent of the Cross on October 16, 2008 at 9:46 AM

You composed your point well. The problem is that the point has been made off and on for months. Unfortunately, in the general public, the issue of Supreme Court appointments is not an area of focus except as part of another issue, say, abortion.

I admit that I didn’t see the debate, but in terms of activist judges, McCain, if he didn’t and I don’t think he did, should have pointed to the Gitmo decision this summer about habeas corpus rights for detainees. Here, Congress had gone to great pains to devise a mechanism to process these people, and still the court rule 5 to 4 against it. And the net result is that McLean, Virginia, almost became the new home for 20 detainees until the DC circuit overruled a lower court.

But McCain and his staff miss these zingers. These are slam dunks that Middle America says, “Well, I don’t want that nonsense, I’m voting for McCain.”

Republicans need to start finding candidates who have a greater command of things so that they can bloody political opponents in these situations. Forget the media. Someone tell me why Obama is even still standing. I think it’s largely because McCain, for reasons beyond me, doesn’t have the ability to shred Obama. Is it lack of killer instinct, Senatorial collegiality, stupidity, indifference? I can’t figure it out.

BuckeyeSam on October 16, 2008 at 10:05 AM

Thank you for highlighting this moment, Ed. I thought it was as stark as it could be. It deserves more play, and from exactly the angle you mention.

Alas, time is short.

[email protected] Ridge on October 16, 2008 at 10:06 AM

Taxes, Abortion, Supreme Court Picks. hit it, hit it, hit it

Sugar Land on October 16, 2008 at 10:07 AM

Dear God,
Please help us
to protect and preserve
Our Constitution,
a gift we honor.

You know it’s impudent to ask for something you aren’t willing to work for. Let’s show those Obama drones how good things are accomplished and protect what is righteous in the doing. Ace of Spades HQ has an effective plan for us to concert our efforts to drag McCain over the victory line.

Insurrection!: If McCain Won’t Do It, We Will
—Ace

http://ace.mu.nu/

maverick muse on October 16, 2008 at 10:08 AM

I’m kind of hungry this morning, doesn’t the constitution contain a right to free McDonald’s breakfast? I sure could use some help…

NeoconNews.com on October 16, 2008 at 9:46 AM

That’s a great strategy to use against socialized healthcare.

Tell them you’re all for it, but first we have to have socialized food delivery. Because it’s more important that people eat then have health care.

Then we have to have socialized housing. Because it’s more important that people have a home than have health care.

THEN, after you’ve solved those two problems, can you socialize medicine.

Skywise on October 16, 2008 at 10:11 AM

Replacing 3 liberal judges with 3 liberal judges does not upset the balance on the court. 3 – 3 = 0.

InTheBellyoftheBeast on October 16, 2008 at 10:01 AM

The oldest judges are Stevens (88), Ginsburg (75), Scalia (72), Kennedy (72). Obama can reset the clock by picking liberal judges who are about 50 years old. If Scalia is replaced it changes the balance significantly.

dedalus on October 16, 2008 at 10:18 AM

Ed:

Very well stated – excellent piece.

jrlingreenbay on October 16, 2008 at 10:19 AM

I fear that God is judging us, or perhaps disciplining us.
jgapinoy on October 16, 2008 at 9:50 AM

He would have spared Sodom and Gom. for 10 righteous people, Gen. 18:32.

Akzed on October 16, 2008 at 10:21 AM

That’s a great strategy to use against socialized healthcare. Skywise on October 16, 2008 at 10:11 AM

Check out Bill Whittle’s commentary on this at PJTV.

rslancer14 on October 16, 2008 at 10:21 AM

McCain should have reminded Obama that if there weren’t such a thing as a statute of limitations, his buddy Bill Ayers would still be on the run.

Kafir on October 16, 2008 at 10:21 AM

The USA will die on November 4 with a Marxist as POTUS

grapeknutz on October 16, 2008 at 10:23 AM

As a former Judge I was and am well versed in the principle of stare decisis. The Judge’s are not supposed to legislate from the bench. If there is a problem with the law Congress needs to re-visit the law and change it not a Judge, unless the law passed is un-constitutional. Check and balance of power is exactly what it is supposed to be.

skatz51 on October 16, 2008 at 10:25 AM

The USA will die on November 4 with a Marxist as POTUS – grapeknutz on October 16, 2008 at 10:23 AM

It was just a nightmare, grape. Now button up your jammies and go back to bed.

ManlyRash on October 16, 2008 at 10:26 AM

It is quite apparent why guns, abortion, and judges got no play time in these debates till now.

The more we look back at Debate #3, the more people will realize just how God awful Obama really is and how McCain carried the night and changed the election.

TheHat on October 16, 2008 at 10:34 AM

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Sounds like Obama doesn’t understand the difference between a Justice and the Justice League.

Cicero43 on October 16, 2008 at 10:58 AM

Have to disagree with you here, Captain.

The decision by the Supreme Court means that damages due to discrimination which occurred 180 days prior to a filing with the EEOC cannot be remedied. That means that if I discover after 5 years of employment that I have been systematically discriminated against, I have no recourse. In particular, if a document or witness surfaces six months and one day after discrimination against me has occurred, I have no recourse.

In other words, employees must now be preemptive in filing suits in order to protect their rights.

Normally, discovery of discrimination tolls the statute of limitations, as does any actual act in a pattern of discrimination which was unknown to the victim. Ledbetter claimed that each paycheck issued to her with a lesser salary than her same-performing male peers was an act of discrimination; the court disagreed, stating that even if the lower pay was the result of discrimination, the act of issuing the paycheck itself was not an act of discrimination.

There isn’t even a close call here — this decision is of the same ilk as Plessy v. Ferguson.

What was at issue here was not only this Supreme Court decision (which I obviously find stupid), but also the stupidity of the Democratic response, which was the “Lilly Ledbetter Fair Pay Act”, which went too far in the other direction, and which the Democrats tried to ram through via a straight up-down vote with no discussion or negotiation.

Of course, Obama could really care less about Lilly — he’s far more interested in “No Child Left Alive” — his replacement for Bush’s education initiative which serves to combat global warming by removing excess population via a policy of previable postnatal abortion. He needs to pack the Supremes properly for this issue.

unclesmrgol on October 16, 2008 at 11:03 AM

An ad pointing out that Obama wants to appoint judges who will substitute their own view of right and wrong for that of the electorate would be red meat for the base, as well as something that will concern most moderates.

As usual, Obama hands McCain the weapons that will destroy Obama. Does McCain have the wit to recognize that weapon and to use it.

History is not encouraging.

MarkTheGreat on October 16, 2008 at 11:15 AM

obbie + courts = bye, bye USA

jimmer on October 16, 2008 at 11:16 AM

It’s sad to see the Common Law implicitly brushed aside. We have always had judge made law. That’s a fundamental part of common law and of our legal system. If you don’t like it, it’s one thing, but to state that Obama would change anything there is simply not true, he would simply continue in our tradition.

mycowardice on October 16, 2008 at 11:41 AM

And people wonder how we got to this point, a choice between Obama or McCain, a socialist or a moderate socialist? Ever since Reagan, the Republicans, specifically the “conservative” branch of the party, has sold its soul in order to save what little they have left in terms of representation by the Republican candidates. “Conservatives” have been weak-minded, short-sighted, and, frankly, cowardly in regards to standing up for their beliefs. “Conservatives” (I have a hard time finding the meaning of the term anymore- even McCain claims to be one) have done themselves no favors by consistently voting for the “lesser of two evils” in the past 5 elections. We wonder why McCain won’t listen to the “base”? Have you ever thought that he realizes, with good reason, that he doesn’t have to do so? Why should he? He already has your vote. What else does he need from you? So what, you’re pissed off? Why should he care if you’re pissed off if he still gets your vote? “Conservatives” have been weak in not demanding that Republican candidates stand for their principles or else they won’t vote for them. “Conservatives” have lacked any vision by thinking that things would somehow get better by continually giving their blind support to those who don’t support their ideals. “Conservatives” have been cowardly by fearing the loss of what little they have in terms of political representation have rather than trying to win.
So this election day, whether anyone else stands with me or not, I’m doing my part to say “That is the last straw” to the Republican party by voting for a third party candidate. Some may say, “oh, well you’re giving your vote to Obama.” No, my vote is going to someone who shares my ideals, something of which neither Obama nor McCain have any apparent understanding.

Send_Me on October 16, 2008 at 11:53 AM

I’m kind of hungry this morning, doesn’t the constitution contain a right to free McDonald’s breakfast? I sure could use some help…

NeoconNews.com on October 16, 2008 at 9:46 AM

Not in so many words, but if you’re craving a McDonald’s breakfast, go ahead and steal one. It’s clearly “unfair” for you to be deprived of something you want, especially since other people are able to get it.

In the event you’re prosecuted, I’m sure an Obama-appointed judge will see the unfairness done to you and remedy it by awarding you millions of dollars (lots more if you’re black or an illegal alien) in damages from McDonalds, that evil corporation founded by greedy white people.

abinitioadinfinitum on October 16, 2008 at 9:43 AM

“King Obama”? I’m only surprised he didn’t write “Emperor of the World Obama” or something equally grandiose. A junior Senator with his own faux presidential seal, his own faux presidential coins, his own faux O-Farce-One, etc. Obama’s narcissism knows no bounds.

God save the U.S.A. from this megalomaniacal fraud.

AZCoyote on October 16, 2008 at 11:57 AM

What’s to stop Barry from trying to pack the court? FDR tried it and failed, but that was around 1936 and his opposition was gaining some ground by that time. Also, his argument for doing it was transparent. BHO could almost plausibly claim that the court is:

a. Too small for a nation of this size,
b. Unrepresentative because you couldn’t possibily reflect that great tapestry that is America with only 9 people,
c. Bound to break down into two competing groups with, perhaps, one swing vote who really wields all the power.

With strong majorities in both the House and Senate and a promise to “reach across the aisle” and nominate someone like Arlen Spector (along with four left-wing wackos) he might be able to pull it off. It’s risky, but it would seal the deal for a long, long time to come.

jl on October 16, 2008 at 12:30 PM

Obama said there are some issues that shouldn’t be subject to the ficklness of voting, that’s why we have the Supreme Court.

That is a good argument as long as we base the selection of judges on qualifications and and ability to stick to the Constitution. As soon as ideological leanings become equal with the Constitution the court becomes a mini-democracy rather than a legal reasoning body.

It then matters not what the law is but which ideological position is most popular with the court. Then this Supreme-Minority votes and decides instead of the people voting and deciding.

Elections are basically polls. And polls are always more accurate which larger numbers of people voting. Obama is wrong. It is important to get as much ideology out of the court as possible. That is what Republicans try to do.

The thing is Roe always looks like a litmus test because Roe was new law totally made up by the court. So if you disagree with Roe you are automatically disqualified by the left. There is a better basis to disagree with Roe and it is Constitutional not ideological.

Therefore, Obama, et. al have to trash the Constitution to up hold Roe. But few ever see it that way.

petunia on October 16, 2008 at 12:54 PM

It’s sad to see the Common Law implicitly brushed aside. We have always had judge made law. That’s a fundamental part of common law and of our legal system. If you don’t like it, it’s one thing, but to state that Obama would change anything there is simply not true, he would simply continue in our tradition.

mycowardice on October 16, 2008 at 11:41 AM

But “judge decided law” on something this huge is Tyranny of the minority. This isn’t a penalty for spiting on the sidewalk. This is life and death. We have to base big issues on the Constitution and a strict reading of it or it becomes one groups opinion that rules the rest. That is not fair or democratic. That is totalitarian.

petunia on October 16, 2008 at 1:00 PM

Nine is enough. They don’t represent any certain number of people each. Anymore than this and you could start to have decisions split three ways all the time and could end up with widely varying outcomes on similar issues. In fact nine is almost too many for an orderly decision. Five would be better.

petunia on October 16, 2008 at 1:03 PM

But “judge decided law” on something this huge is Tyranny of the minority. This isn’t a penalty for spiting on the sidewalk. This is life and death. We have to base big issues on the Constitution and a strict reading of it or it becomes one groups opinion that rules the rest. That is not fair or democratic. That is totalitarian.

petunia on October 16, 2008 at 1:00 PM

But the problem is that what you describe as ‘tyranny of the minority’ has been our system for centuries. Just because it’s being like this doesn’t necessarily mean it’s good, but Obama is simply in line with our current system.

Also, I don’t think it’s totalitarian. Sometimes law are not adapted to deal with new situations and judges come in to fix it. That’s where the judges come in a create new law to deal with the facts in front of them. I encourage you to go read on the common law to see what kind of legal tradition we come from. Law doesn’t mean just statutes. It can also be rules that are never voted by the legislature yet apply to disputes.

mycowardice on October 16, 2008 at 1:18 PM

That’s where the judges come in a create new law to deal with the facts in front of them.

That’s where you’re totally missing the boat. Judges aren’t supposed to create laws. Their only purpose is to interpret and apply the laws.

Your mindset and misunderstanding of this reality, along with those of your ideological ilk, is precisely the problem.

I know your alinsky/cloward/pliven training convinces you otherwise, but the truth is, you’re just what the soviets used to refer to as a ‘useful tool’ agitating for destabilization of the society you live in to provide an opening for those that would destroy that same society.

You’re a sucker, mycowardice. And you’re appropriately nicked as well.

techno_barbarian on October 16, 2008 at 2:14 PM

You’re a sucker, mycowardice. And you’re appropriately nicked as well.

techno_barbarian on October 16, 2008 at 2:14 PM

Please go read the article on Wikipedia on the Common Law and tell me what judges are supposed to do.

Statutes are never complete. The legislature can never predict every situation that will arise. Our system has always given a lot of latitude to judges to create jurisprudence (i.e. law) that other judges will have to follow. For example, the tort of negligence which we constantly use is judge made law. This is the basis of the judicial system in America.

mycowardice on October 16, 2008 at 2:29 PM

mycowardice on October 16, 2008 at 2:29 PM

Wikipedia? Useless as a repository for knowledge.

Your marxist spin falls on deaf ears.

Take a look at this and learn what’s in store for you at the hands of your own marxist masters.

Wake up, mycowardice. You’re being played for a fool. I blame your indoctrination, but maybe you won’t be like those Bezmanov discribes who’s minds are completely unchangable in the face of facts.

Ya been hoodwinked, mycowardice. Bamboozled.

techno_barbarian on October 16, 2008 at 3:47 PM