McCain, Obama Differ on Approach to Judicial Nominees

July 7, 2008 - 8:33 PM

(CNSNews.com) - The records of Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.) are very different when it comes to judges and courts.

The Republican and Democratic candidates for president are far apart when it comes to judicial philosophy and the votes they cast on major judicial nominations during the 109th and 110th Congresses.

McCain wants to appoint judges who hold a constructionist interpretation of the U.S. Constitution, according to his campaign's Web site.

"When applying the law, the role of judges is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law," McCain said. "The judicial role is necessarily limited and one that requires restraint and humility."

The McCain Web site offers the promise that his "judicial appointees will understand that the federal government was intended to have limited scope, and that federal courts must respect the proper role of local and state governments."

Obama, meanwhile, has said he wants to appoint judges who have "empathy."

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," Obama told a Planned Parenthood conference in Washington, D.C., in 2007 "The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

McCain supported Supreme Court nominees John G. Roberts, Jr., and Samuel Alito, Jr., to become chief justice of the United States and associate justice, respectively. McCain voted to confirm both men, whom he said were "strict constructionists." Obama voted against both.

Obama explained his decision in speeches, which, while acknowledging the intellectual and legal qualifications of Roberts and Alito, argued that other issues had to be considered.

Speaking on the Senate floor during Alito's confirmation hearings, Obama said: "I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens."

In his speech on Roberts' confirmation, Obama said that the Supreme Court's role is "a check on the majoritarian impulses of the executive branch and the legislative branch."

The two contrasting philosophies were showcased again over the controversial nomination of Judge Leslie Southwick to the Fifth Circuit Court of Appeals.

McCain voted for Southwick, speaking on behalf of the judge in a statement as "clearly qualified" who would not engage in "judicial activism."

Obama voted against Southwick, stating that "now more than ever, we need to restore integrity and a commitment to civil rights in the courts."

Despite holding views of the judiciary, the two presidential candidates have come together in voting in favor of several judicial nominations for lower federal courts -- including those of Lisa Godbey Wood of Georgia, Philip S. Gutierrez of California, Gregory Kent Frizzell of Oklahoma and Norman "Randy" Smith of Idaho.

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