Judges Issue in 3rd Debate

After getting short thrift in the first two presidential debates, the judges issue played a prominent role last night thanks to Bob Schieffer’s question about Roe v. Wade and Supreme Court appointments. Three themes stood out in that discussion:

1) Federalism vs. one size fits all

When asked about Roe v. Wade, John McCain said he favors a “federalist” approach to abortion. “I think that decisions should rest in the hands of the states,” he explained. Obama, on the other hand eschewed both a federalist and democratic approach, saying abortion rights shouldn’t be “subject to state referendum” or “subject to popular vote.” While that’s certainly true of First Amendment rights, as Obama noted, it begs the question of whether the Supreme Court should continue to give the judge-made right to abortion the constitutional status of rights explicitly given to us by the Founding Fathers.

What’s notable here is not that Obama supports Roe or that McCain thinks it was wrongly decided – we already knew that – but that McCain opposes a one-size-fits-all federal solution. Instead he wants the states to decide, which is exactly what would happen if Roe v. Wade were overturned. In contrast, a pro-life federal solution would presumably involve a federal statute or federal constitutional amendment prohibiting most abortions. It could also involve the pro-life equivalent of Roe v. Wade, that is, a Supreme Court ruling discovering a “right to life” in the Constitution. But that’s unlikely, as we’ve seen no indication that the conservative Justices share their liberal colleagues’ stomach for unbridled judicial activism.

2) Bipartisanship

Americans can only speculate about which of the two presidential candidates would be better able to reach across the aisle as President. But Sen. McCain reminded us that, when it comes to judges, he clearly has the more bipartisan track record:

“I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified … Senator Obama voted against Justice [Alito] and Justice Roberts on the grounds that they didn't meet his ideological standards.”

“There was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. We got together seven Republicans, seven Democrats [in the Gang of 14 agreement]. You [Obama] were offered a chance to join. You chose not to."

3) Outcome-oriented judging vs. rule of law

Sen. Obama once again made clear that he will appoint outcome-oriented judges rather than judges who go where the law leads them:

“I will look for those judges who … hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court [by strictly enforcing the statute of limitations] made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. … 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.”

In contrast, McCain said he would appoint judges “who have a history of strict adherence to the Constitution and not legislating from the bench” and noted that waiving the statute of limitations would have been “a trial lawyer's dream.”

Sen. Obama deserves credit for being straight forward and consistent about his belief in outcome-oriented judging. For example, he previously promised to appoint judges who have “the heart, the empathy, to recognize what it's like to be a young teenage mom [and the] empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.” Many other liberals run away from such an outright endorsement of judicial activism by trying to redefine the term or otherwise muddy the distinction between liberal and conservative views of a judge’s proper role. But Obama embraces an activist judicial philosophy.

No one can deny the feel-good appeal of Obama’s descriptions of outcome-oriented judging. But let’s be honest about the dangers of his philosophy. Obama’s vision transforms judges into super-legislators who second guess the popularly elected legislatures that already weighed the costs, benefits, and fairness of various outcomes when crafting the law at issue – Title VII and its statute of limitations in the Ledbetter case. As CFJ Executive Director Curt Levey noted in his recent article about judicial activism:

“[S]uch progressive descriptions of good judging are little more than a license for unbridled judicial discretion. For example, does understanding what it's like to be African-Americans instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor white job applicant who lost a job to the affluent beneficiary of minority hiring preferences?”