Posted by
Always To The Right on Thursday, October 16, 2008 1:49:54 PM
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.