Swing Voters and a President McCain

Many polls seem to favor Obama at this time, and the number of potential swing voters is uncertain. McCain must persuade swing voters in a manner quite severely underused thus far – through emphasizing the stakes that a potential 8-year Obama presidency will have on the federal courts.

Robert A. Levy, chairman of the Cato Institutute, quite aptly elucidates what is at stake in this election concerning judges. Among the items on the upcoming federal judicial docket are:

“privacy, wartime executive power, racial preferences, abortion, property rights, cloning, gay marriage, school choice, the death penalty, [and] gun control.”

But why should this issue matter so much to voters? Quoting Cato constitutional scholar Robert Pilon, Levy makes a critical point concerning the cavalier “living document” view on the Constitution: ‘"If powers can be expanded with impunity, so too can rights be contracted…In fact, a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain."’ Indeed, “when the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name.”

It is imperative that McCain highlight that this is an important historical moment for the courts. If McCain emphasizes the importance of a non-activist judiciary, perhaps he may sway enough people to take him over the top in this election. Ultimately, with one more debate left, he must hammer the virtues of a non-activist judiciary home to the voters – even if the question from the moderator never comes.