A Tale of Two Courts

Slate's blog on legal issues.
May 19 2008 10:03 AM

A Tale of Two Courts

David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this:


Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse ... by an elite group ... we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."

Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.

* * *

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.


The McCain campaign is sure to make this a major issue in its campaign because this issue plays well before the conservative base. The tried-and-true Rove formula calls for running on God, gays, and guns, and all three issues strongly correlate with the appointment of conservative judges. Given the California Supreme Court decision last week on gay marriage, the current U.S. Supreme Court case on gun control, and continuing skirmishes over the role of God in government and public life, the GOP will likely turn to this page in the playbook once again. Such is the conclusion of Jeff Toobin in this week's New Yorker : "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."

So what about the Democrats?   (Disclosure: I support the Obama campaign and have advised it on defense and veterans issues.) I think there may be an opportunity here. Sen. John McCain is an honorable public servant and war hero with great appeal to moderates and independents. To counter that, the Democratic party needs to remind voters that a McCain administration will appoint staunchly Republican judges of the type appointed during the last three Republican administrations. This issue should energize the Democrat base, and it should also give moderates pause before they side with McCain.

It's like the old quip my grandfather used to tell me: " There are only two kinds of judges: Republicans and Democrats ."  Whom do you want on the bench?

Phillip Carter is an Iraq veteran who now directs the veterans research program at the Center for a New American Security.



Meet the New Bosses

How the Republicans would run the Senate.

The Government Is Giving Millions of Dollars in Electric-Car Subsidies to the Wrong Drivers

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Cheez-Its. Ritz. Triscuits.

Why all cracker names sound alike.

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

The Afghan Town With a Legitimately Good Tourism Pitch

A Futurama Writer on How the Vietnam War Shaped the Series

  News & Politics
Sept. 21 2014 11:34 PM People’s Climate March in Photos Hundreds of thousands of marchers took to the streets of NYC in the largest climate rally in history.
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Tv Club
Sept. 21 2014 1:15 PM The Slate Doctor Who Podcast: Episode 5  A spoiler-filled discussion of "Time Heist."
Sept. 21 2014 9:00 PM Attractive People Being Funny While Doing Amusing and Sometimes Romantic Things Don’t dismiss it. Friends was a truly great show.
Future Tense
Sept. 21 2014 11:38 PM “Welcome to the War of Tomorrow” How Futurama’s writers depicted asymmetrical warfare.
  Health & Science
The Good Word
Sept. 21 2014 11:44 PM Does This Name Make Me Sound High-Fat? Why it just seems so right to call a cracker “Cheez-It.”
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.