McCain on Judges

Dylan Loewe over at the Huffington Post has an article today about McCain's position on Judges. Apparently McCain addressed this last week in a major way in a speech that got overshadowed by the primary battle between Clinton and Obama.

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.

I particular agree with the statement that the debate between strict constructionist and activist is political rather than legal. The strict constructionists aren't suggesting we throw out every judicial decision that's come about since the constitution. They aren't suggesting we move back to slavery for example. Rather they are picking and choosing which parts of an 18th century America they like and which parts they don't.

They just dress it up as Strict Constructionism so as to make it seem like their particular interpretation is the only rational one. And McCain apparently agrees with them, or at least that is what he is saying. I suspect that he knew nobody would be paying attention to him last week, least of all Democrats and Undecideds, so he took the opportunity to try and appease his base.