From The Guardian UK
By Dylan Loewe

Last week John McCain gave a public address about the kind of Supreme Court justices he would nominate if elected. The speech, given in North Carolina, was a failed attempt to grab at least a few headlines while all eyes were turned to the more important May 6 Democratic primaries. But with Barack Obama’s game-changing - if not game-ending - victory that evening, most of McCain’s comments were lost to the news cycle, as has been the case for most of the past three months.

Still, McCain’s comments are important. With a number of Clinton supporters suggesting they would rather vote for McCain than Obama, few issues could be more central than McCain’s judicial philosophy. As we saw last week, though unsurprising, his views underscore yet another example of the McCain of 2000 withering into an unrecognizable and incoherent McCain of 2008. McCain said he would appoint judges in the same mold as recent apointees John Roberts and Samuel Alito, arguing: “The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it.”

It is hard to understand what John McCain, or others that repeat similar phrasing, could possibly mean by such a statement. The US justice system is based largely on common law, case law in which justices make decisions that do, in fact, become the law. One cannot interpret the law without making it. A judge, no matter his or her philosophy, when presented with a case in which the law is not explicit, will have to glean from somewhere other than the constitution what the law ought to be. Even Justice Antonin Scalia must participate in such a practice. The distinction between strict constructionist and activist is a political one more than it is a legal one.

McCain’s formulation seems to indicate that though he knows what the Republican talking points are, he does not fully understand what they mean. Where, for example, in the Constitution does he expect to find the phrase, “separation of church and state”? Where in the Constitution does he expect to find the tenet that “separate but equal is inherently unequal”?

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