October 25, 2008 | Commentary on Legal Issues
In his recent endorsement of Barack Obama, Colin Powell mused: "I would have difficulty with two more conservative appointments to the Supreme Court, but that's what we'd be looking at in a McCain administration."
While Powell is correct in highlighting the importance of judicial issues in the upcoming election, his comments reveal an all-too-common misunderstanding of the role of judges. Rather than scrutinizing judicial nominees based on their perceived political leanings, the next president should appoint judges who apply the law regardless of their own policy preferences.
Because six members of the Court will be age 69 or older when the next president is inaugurated, it's likely that multiple vacancies will occur during the next administration. This will create a rare opportunity for the next president to alter the direction of the High Court for the next several decades. It's crucial, therefore, to have a president who understands the judiciary's proper role. As Ronald Reagan once noted, "[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative." For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning.
This proper understanding of the courts stands in direct contrast with Powell's statement, which seems to assume both that McCain would appoint conservatives, and that Obama would appoint non-conservatives of some ilk.
Indeed, a great problem on the Court is that some judges don't meet this ideal. They readily admit that their personal preferences and experiences play a pivotal role in judicial decision-making.
For example, in a death penalty case this year, Justice Anthony Kennedy considered his "own experience" when interpreting the Eighth Amendment. As Judge Robert Bork noted at a recent Heritage event, Kennedy has made the frightening assertion that judges have the "opportunity to shape the destiny of the country" -- a startling reflection of Justice Kennedy's infatuation with his own aggrandized power.
Yet it is clear that Americans do not want the personal opinions of nine unelected judges "shaping" their destiny. A recent survey conducted by the Polling Company on behalf of the Federalist Society found that a whopping 71 percent of likely Ohio voters want the next president to nominate Supreme Court justices who will "interpret and apply the law as it is written and not take into account their own viewpoints and experiences."
Given the clear importance of judicial nominations in the next administration -- and keeping in mind Reagan's admonition, which seemingly comports with recent polling data -- it's worthwhile to review where the candidates come down on this important issue.
Barack Obama, who opposed the nominations of Chief Justice John Roberts and Justice Samuel Alito, has repeatedly stated that his primary criteria for selecting judges will be whether they have "heart" and "empathy" when deciding difficult constitutional cases. His decision to vote against Roberts was based on his own displeasure with what was "in the judge's heart," though he admitted to having "no doubt" in his mind that Judge Roberts was "qualified to sit on the highest court of the land" and had the correct "comportment and temperament."
Obama's frequent invocation of "heart," particularly as he has discussed it as relevant in cases addressing abortion, affirmative action, gay rights, and rights of the disabled, would seem to suggest that he values the "viewpoint" and "experience" factors that those polled in Ohio reject.
John McCain has promised to appoint judges who will respect their limited constitutional role and leave policy decisions to the democratic process. However, questions remain. In the final presidential debate, he defended his role in the controversial Gang of Fourteen, a bipartisan group of senators who reached a compromise that, while permitting a vote on some of President Bush's federal court nominees, abandoned the prospect of votes for several others and preserved the ability of the Senate minority to invoke an unprecedented use of the filibuster.
That said, McCain did demonstrate that his understanding of the judicial role differs from Powell's. Adding disapproval to the "conservative judges" nomenclature, he chastised Obama for wrongly taking into account political ideology: "You chose not to [join] because you were afraid of the appointment of, quote, 'conservative judges.'"
The next president has the historic opportunity to restore the judiciary to its constitutional role and thus preserve the rule of law in America for generations to come. This can be done only if he, like Reagan, appoints judges based not on whether they are "liberal" or "conservative," but whether they will faithfully interpret the Constitution and laws of this nation, free from personal bias.
Deborah O'Malley is a Research Associate in the Center for Legal and Judicial Studies at The Heritage Foundation
First appeared on FOXNews.com