Tuesday, January 22, 2008

McCain & Wisconsin Right to Life — It's Really Very Simple   [Andy McCarthy]

I think I've failed to make the most obvious, most important point on this:  Judicial philosophy.

Sen. McCain may claim, to try to appease his critics, that he would appoint originalist judges.  But the blunt fact is that such judges would be innately hostile to the "living constitution" — meaning they would be suspicious not only of Roe v. Wade but of schemes like campaign finance reform, a signature McCain issue.  It is not for nothing that Chief Justice Roberts and Justice Alito were in the majority ruling against McCain's side in the Wisconsin Right to Life case last term.

But it's important to bear in mind that the Court invited more campaign finance cases in its decision.  This issue is going to come up again. 

So, let's say Justice Stevens retires.  Whom does a President McCain appoint to the Supreme Court?  Will he be more inclined to nominate originalist judges or judges who would uphold the suppression of core political speech rights?  They are, after all, not likely to be one and the same.

Based on what he did in Wisconsin Right to Life — choosing, when he was under no obligation to do so, to jump in on the side of speech suppression against the pro-life message — why should anyone believe McCain would appoint originalist judges?

01/22 10:21 AMShare