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.