Challenging justice

Our view: A McCain court would tilt solidly right

May 07, 2008

Sen. John McCain pledged yesterday to nominate only strict-constructionist judges to the federal bench, in the spirit of President Bush. For thoughtful voters concerned about the Supreme Court's pernicious drift to the right in recent years, that promise offers ample justification to campaign for a presidential candidate with more moderate views.

If voters were curious about who fits Mr. McCain's "strict-constructionist" description, the Republican senator offered a big clue: He complimented Bush appointees Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. as "jurists of the highest caliber who know their own minds, and know the law, and know the difference." And just to be clear on who won't be included in his judicial list, Mr. McCain railed against "activist judges" who show "little regard" for the Constitution and even less for the interests of the American people.

But conservative judges are just as likely to pursue their brand of activism on issues where they favor change. Justices Roberts and Alito were among the members who approved turning voters without ID cards away from the polls and challenged Washington, D.C.'s handgun control law.

With the landmark Supreme Court case on a woman's right to abortion a target of conservatives, the next president may have an opportunity to fill several court vacancies. Four justices are over 70, including John Paul Stevens, 88, and Ruth Bader Ginsburg, 75. Because Justices Stevens and Ginsburg are by some measures the court's most liberal members, a McCain presidency would likely put the court even more in the conservatives' camp.

In 2005, Senator McCain showed the independent spirit that made him attractive to many Americans by joining the "Gang of 14," a bipartisan group of senators who avoided a destructive showdown over the minority's right to block judicial nominees. Compromise is at the heart of the legal and political process, but Mr. McCain's pledge yesterday to support only judicial nominees acceptable to the most conservative wing of his party challenges reason and invites rejection.

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