Senators McCain and Obama both point out that the next President will most likely send 2 or possibly 3 Supreme Court candidates to the Senate for confirmation. Additionally, there may well be over 100 open seats in the federal judiciary that includes the 13 U.S. Courts of Appeals and the 94 U.S. District Courts that will need to be filled. There is little doubt that the choices made in this area will have a profound and lasting effect on individual rights and freedom.
SUPREME COURT AND THE JUDICIARY
Under article lll of the Constitution the only qualifications established for federal judges is that they are nominated by the President and confirmed by the Senate. They hold office during "good behavior", typically for life. The judiciary exercises its check on both the legislative and executive branches in that it can declare laws and presidential orders unconstitutional.
Until the 1940's, Senate confirmation hearings were fairly perfunctory respecting the President's perogative and were limited to examining the nominee's standing in the legal community, intellect, legal knowledge and judicial temperament. The current process has become much more adversarial with both right and left leaning senators trying to discern a nominee's position on specific issues such as abortion or the second amendment. The nominee is then forced to resist telegraphing his position or feelings on the issues as he would then be faced with having to recuse himself should he be asked to hear a case involving those issues.
The Supreme Court is currently divided along two philosophical schools of thought. While understanding these different approaches to interpreting the constitutionality of laws is no guarantee of how a Judge will ultimately decide a specific case, it is possible to infer the tendencies of the prospective jurist.
In spite of his teaching Constitutional Law at the University of Chicago, Obama has surprisingly published and spoken little on the subject. The issue is not addressed on his web site or in his stump speech and there is little in the public record that would illuminate his philosophy. One of the only times he has gone on the record was in September of 2005, when Senator Obama explained his vote against the confirmation of Judge Roberts.
Obama stated that "There is absolutely no doubt in my mind Judge Roberts is qualified ..." He went on to praise Roberts for his decency, respect for opposing views, impartiality and legal expertise. He went on to say "The problem I face ... is that while adherence to legal precedent and rules of constitutional contruction will dispose of 95% of the cases -- what matters is the 5% ..." Obama said that these most difficult cases would be determined on " the basis of one's deepest values, one's core beliefs, one's broader perspective and the depth and breadth of one's empathy".
Ignoring the text of the constitution or some other law and substituting instead his own preference for what it ought to say, or to deciding a legal issue on the basis of personal empathy and core personal beliefs rather that the law or the constitution is the definition of judicial activism.
Senator McCain has stated that he is an Originalist. The most well known proponent of originalism as it applies to interpreting the Constitution is Justice Antonin Scalia who explains that those who believe that the Constitution is a living document that changes with societal changes overlooks the obvious. " The Constitution is not a living organism, it is a legal document. It says some things and doesn't say other things."
One of the dangers that originalists point to is that judicial activism often involves putting something into the text that isn't there or taking out something that is there in order to arrive at an idealogically based outcome.
Once again, the candidates have drawn a distinct difference in how they will administer the duties of highest office.
The Edge
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