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McCain v Obama on Judges

Jennifer Rubin:

In the back and forth between John McCain and the Democrats over today’s speech on judges, Barack Obama’s campaign chief uttered this unintentionally incriminating comment:

Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

Actually, judges aren’t supposed to stand up for some poorly defined notion of social–let alone economic–justice. The job of federal court judges is to interpret the Constitution and statutes. As for letting people “fend for themselves,” there are two other branches of government out there (you’ve heard of them, maybe?) which spend quite a bit of time attempting to achieve social fairness and practicing economic redistribution.

So, if McCain’s staffers were smart, they’d respond to David Axelrod’s confession that his boss believes in judicial imperialism with: “See, told you so.”

Exactly. It’s interesting, moreover, how the Obama campaign is sticking to message on this issue. Back in February I wrote that:

For somebody who taught Constitutional law for years, Barack Obama has an awfully odd conception of the judicial role. Orin Kerr collects some quotes from Obama about judges, including this gem:

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. 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.

As does Orin, I realize that this is a widely shared view of the judicial role among left-liberals, but that simply illustrates how far left-liberalism has strayed from the rule of law. Settling upon a preferred outcome, without resort to the law, because it favors one group or another ought to be foreign to the judicial role. Judges are supposed to be neutral arbitrators, not having a thumb on the scale in favor of one side or the other. The rule of law means that every one is equal before the law, whether rich or poor, white or black. As the first Justice Harlan wrote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” That ought to be the criteria by which one picks judges.

As I elaborated in the comment section, Obama wants judges with a thumb on the scale on the side of whatever group the judge perceives to be disadvantaged.