McCain castigates Obama on judges

By LIBBY QUAID, Associated Press Writer 2 hours, 38 minutes ago
http://news.yahoo.com/s/ap/20080506/ap_on_el_pr/mccain_judges

WINSTON-SALEM, N.C. - Republican John McCain criticized Democratic rival Barack Obama for voting against John Roberts as U.S. chief justice, reaching out to the Christian right on one of their chief concerns: the proper role of judges in government.

Conservatives contend that federal judges have upset the constitutional balance of power among the courts, the Congress and the presidency by making far-reaching decisions, such as one in 2005 that let cities seize people's homes to make way for shopping malls.

"My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power," McCain said Tuesday in a speech at Wake Forest University.

McCain, the eventual GOP nominee, promised to appoint judges in the mold of Roberts and Supreme Court Justice Samuel Alito, saying they would interpret the law strictly to curb the scope of their rulings. While McCain didn't mention abortion, the far right understands that such nominees would be likely to limit or perhaps overturn the Roe v. Wade decision that legalized abortion.

Obama, on the other hand, voted against Roberts and Alito. So did Obama's rival, Hillary Rodham Clinton, but McCain focused on Obama.

"Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done," McCain said. "But ... he went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee."

In response, Obama's campaign said McCain would pick judges who would threaten abortion rights as well as McCain's own campaign finance reform bill.

"What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," Obama spokesman Tommy Vietor said.

The Arizona senator said his role models interpret the law strictly, paying attention to what lawmakers intended, as opposed to "activist" judges who, by striking down statutes or court decisions, make laws rather than interpret them. "Activist" is a term conservatives use pejoratively to criticize liberal justices.

McCain did not spare his own party, pointedly criticizing opinions written by Republican appointees, Supreme Court justices John Paul Stevens and Anthony Kennedy. He didn't name the justices but used their writings to make his case against judicial activism.

McCain spoke derisively of Kennedy's 2005 majority opinion banning executions for killers younger than 18. McCain said the opinion contained "airy constructs ... as poor substitutes for clear and rigorous constitutional reasoning."

Kennedy recently defended his reasoning in the case, decided on a 5-4 vote, saying it was "a matter of interpretation of our own Constitution."

In the private property case McCain mentioned, the Supreme Court chose to defer to local officials rather than impose their own will from afar. Justice John Paul Stevens, in his majority opinion, wrote of the court's "long-standing policy of deference to legislative judgments in this field."

McCain wasn't in the Senate when Stevens became a justice, but he voted for Kennedy's nomination by President Reagan in 1988.

For a moment Tuesday, McCain appeared confused about where he was, saying, "I appreciate the hospitality of the students and faculty of West Virginia," then correcting himself to say Wake Forest as the audience laughed.

By speaking about judges, McCain offered an olive branch to the Christian right, which has been deeply suspicious of McCain. He has clashed with its leaders and worked against them on issues like campaign finance reform. He also joined the "Gang of 14," a group of senators — seven Republicans and seven Democrats — who avoided a showdown over judges by agreeing to preserve the minority party's right to block President Bush's nominees with the filibuster.

Despite his rocky relations with the right, McCain's record on their top priorities — cultural issues like abortion — is very conservative.

While he did say once in 1999 that Roe v. Wade should not be overturned, that amounted to a blip in an otherwise unbroken record of opposing abortion rights for women. McCain repeatedly has voted against federal funding for abortion and has opposed federal Medicaid funds for abortion even in cases of rape or incest.

Several conservative activists said they liked McCain's speech.

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The article is interesting in how Republicans frame the issue of judicial opinions. If a judge issues an order that Republicans disagree with, the judge is an "activist." If the judge issues an order that Republicans agree with, the judge has issued something consistent with the Constitution.

That is interesting because the 7th Amendment states, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

Yet "tort reform" or "civil justice reform" are ideas argued by Republicans to put limits on a jury's decision on damages. Republicans argue that these artificial caps are necessary even though the Constitution states "the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined...."