Continuing the conversation on judicial nominations, Rudy Giuliani appeared on Fox yesterday to review John McCain’s Wake Forest speech. He gave McCain high marks, but laughed out loud at Barack Obama’s response. Giuliani questioned whether the constitutional law professor even knows what role judges are supposed to play and the difference between the judiciary and the legislature:
KELLY: Well, it didn’t take long for Obama’s camp to fire right back. At that, we’ll get to the Obama campaign reaction in a minute. First, we want to get the mayor’s reaction to John McCain’s accusation saying that Obama — and he actually took aim at Clinton, too, having an elitist view of judges.
GIULIANI: I would say that’s a very legitimate difference, rather than a charge or an accusation. John McCain is going to appoint judges who are conservative. Barack Obama will appoint judges who are left-wing. He will appoint activist judges who are activist judges in the sense of trying to take the Constitution and move it into solving social problems rather than feeling stuck with the words of the Constitution.
KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”
Why the laughter?
GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.
And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.
I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?
In our earlier threads, some of our commenters insisted that there would be no difference between McCain and Obama on judicial appointments. Obama himself made the difference clear; he wants judges who would impose social policy rather than interpret and enforce existing law. This makes sense from a legislator who has done nothing to propose social policy in his three years in the Senate. He would rather take the shortcut on which liberal activists have grown to rely when they realize that their radical plans have little chance of success in the legislative process.
Of all the candidates, I believed that Giuliani would have nominated the best judges. As a prosecutor, he understood the need for originalism and judicial modesty. He also had Ted Olson as his chief adviser on the judiciary, a man who spent years arguing cases at the Supreme Court and also saw the need for originalism up close and personal. Olson has now become an unofficial adviser to the McCain campaign after endorsing him in February after Giuliani’s withdrawal from the Republican primaries.
Giuliani doesn’t believe that McCain and Obama would pick the same kind of jurists for important federal bench openings. Given that we can expect at least two Supreme Court openings in the next term, that philosophical difference — as outlined by Obama himself — should indicate the stakes in this election to conservatives. Giuliani is laughing today, but if President Obama fills those slots with a Democratic majority in the Senate, conservatives won’t be laughing then or for the next twenty years afterwards.