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