October 22, 2008

McCain: Judges Nominated Would Not Agree With Me on “Every Single Issue”

Over the last several months, bloggers and pundits have brought up the issue of whether McCain’s promise to nominate non-activists to the federal courts conflicts with his support of campaign finance reforms, including McCain-Feingold. In the words of Volokh Cospiracy blogger Illya Somin, “a President McCain would face a difficult tradeoff between the goal of appointing conservative jurists and the goal of saving the McCain-Feingold law from invalidation by the Court."

In a recent interview with Human Events, the Senator responded to reporter John Gizzi’s question concerning this issue:

“Q: Now the four justices you cite as models for nomination -- Roberts, Alito, Clarence Thomas, and Antonin Scalia -- have all at different times voted to overturn parts of the McCain-Feingold campaign legislation you co-authored. Would you appoint justices who would do that?

A: Well, obviously, I wouldn’t impose any litmus tests. No justice that I would nominate would I expect to agree with me on every single issue. The majority of justices just made a ruling on detainees I didn’t agree with. That was very disturbing to me. And so, I can’t say I would agree with every decision. But if I can count on every justice that I name to share my view of the judiciary, then in the long run, things should come out OK.”

McCain gets it exactly right. In contrast to the outcome-oriented judicial philosophy of Barack Obama, McCain believes that the measure of a judge is not reaching the outcomes McCain desires but instead, using a constitutionalist approach to reach whatever outcome is dictated by the law.