Could America use more Robertses and Alitos on the bench?

The Associated Press

Justice Samuel Alito, left, and Chief Justice John Roberts, with their families at a White House reception.

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Could America use more Robertses and Alitos on the bench?

Highlighting an issue he plans to use aggressively in the general election campaign, John McCain on Tuesday decried "the common and systematic abuse of our federal courts by the people we entrust with judicial power" and pledged to nominate judges similar to the ones President Bush has placed on the bench.

McCain spoke Tuesday at Wake Forest University about the Constitution and his own judicial philosophy. Using key confidence-building phrases like “judicial restraint” and “limits to the scope of judicial power,” McCain lauded the appointment of Chief Justice John Roberts and Justice Samuel Alito, saying he would nominate justices in their mold -- notably leaving out more polarizing Justices Thomas and Scalia.

Does a candidates judicial philosophy matter? Is judicial restraint important? Should judges be deciding whether abortion and other hot-button issues are constitutional rights? Are Roberts and Alito good models of judicial restraint and justices with a coherent philosophy? If not Roberts and Alito, then who would be?

Ben likes: Judicial promise

National Review

The future direction of the Supreme Court is very much at stake in this November’s presidential election. The two or three justices most likely to depart the Court over the next four years -- Justice Stevens, Justice Ginsburg, and possibly Justice Souter -- are liberal judicial activists who routinely read their own policy preferences into the Constitution and who selectively regard their own favored precedents as sacrosanct. If a President Obama or a President Clinton names their successors, the slender operating majority on the Court for liberal activist results on most contentious political issues is likely to be preserved for at least another generation. By contrast, a president committed to nominate, and fight for, justices who will practice judicial restraint offers real hope that the Court may soon be restored to its proper role in our constitutional system. In his speech today, John McCain has provided encouraging evidence that he would be that president. One speech, of course, does not a campaign -- or a Supreme Court appointment -- make. John McCain needs to continue to make the case for judicial restraint and to draw the stark contrast between his views and his Democratic opponent’s on the proper role of the judiciary. If elected, he will need to populate key judge-picking positions -- including the White House counsel and the attorney general -- with experienced advisers committed to his stated goals. (We would rest easier if he threw out a few names now.) And he will need to be ready to devote a lot of political capital to defeat intransigent Democratic opposition in the Senate. Conservatives, for their part, need to do what we can to help McCain live up to his promises.

Joel likes: McCain's code words

Doug Kendall/Huffington Post

If the proper role of the judiciary is going to be one of "the defining issues of this presidential election," as John McCain asserted today, he should try to develop a coherent position on the topic.

At his speech in North Carolina, McCain expressed his opposition to judges who issue opinions "wandering farther and farther from the clear meanings of the Constitution" and who solve "policy questions that should be decided democratically."

The problem is that the justices McCain hails as the paragons of constitutional fidelity and judicial restraint -- John Roberts and Samuel Alito -- have been quite activist in a number of cases, departing from the Constitution's text and history and sharply limiting important federal, state, and local laws passed by overwhelming popular majorities.

John McCain knows this, of course, because one of the better examples is FEC v. Wisconsin Right to Life, a 5-4 opinion written by Roberts in 2007 which defangs the limits on corporate issue ads imposed by the McCain/Feingold Bipartisan Campaign Reform Act. McCain initiated the suit against Wisconsin Right to Life and when the Court limited his law he called its opinion "regrettable." He is right about that.