The Occasional Observer

Here's what McCain and Huck had to say in letters to the Federalist Society explaining their criteria for choosing justices:

Senator John McCain:

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

We are a free people. This means that the rules we have agreed to live by are those made by the people themselves, not a small elite that claims to be wiser than everybody else. Our laws are legitimate precisely because they reflect decisions solemnly made by the people – in the case of Constitutional law, through the process of ratification and periodic amendment; in the case of statutory law, through their elected representatives in the legislative process. When applying the law, the role of the judge 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. The judicial role is necessarily limited and one that requires restraint and humility. As I said to the Society at the 2006 convention, “[Judges] should be people who are humbled by their role in our system, not emboldened by it. Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of arbitrary executive, or legislative, or state power.”

This is not a new position. I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.

There are two areas of special concern that relate to the careful “balance of power” struck in our Constitutional structure – a balance essential to preserving our liberties. The first of these is the principle of Federalism. My 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. The second principle is Separation of Powers. My judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. I will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.

I believe that shaping the judiciary through the appointment power is one of the most important and solemn responsibilities a President has, and certainly one that has a profound and lasting impact. When I was running for President in 1999, I promised that, in appointing judges, I would not only insist on persons who were faithful to the Constitution, but persons who had a record that demonstrated that fidelity. A President should have confidence in the judicial philosophy of those he is appointing to the bench. That is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees.

Governor Mike Huckabee:

One of the greatest ongoing threats to our constitutional republic is the ever-increasing politicization of the federal judiciary. Instead of interpreting the law according to its plain or original meaning, many judges are using the Constitution and statutes passed by Congress as a mere pretense for imposing their policy preferences on the American people. This is unacceptable. The role of a judge is to interpret the law, not to legislate from the bench; and as president, I will only appoint men and women who share this view.

I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a “living Constitution.” The meaning of the Constitution cannot be changed by judicial fiat. The powers delegated to the federal government by the Constitution come from “We the People,” and judges have no right to prohibit the people from passing democratically-enacted laws unless we have explicitly authorized them to do so. Nor can vaguely-worded language in the Constitution be used by judges to give them power over subjects the framers never intended our founding document to address. As such, any interpretation of the Constitution that is based on “evolving standards of decency,” penumbras, or any other judicial fiction, is antithetical to the rule of law, and must be forcefully challenged.

As president, I will appoint justices and judges who not only share my judicial philosophy ( e.g., Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito), but who also have established themselves within the conservative legal community as faithful adherents of originalism and textualism. The stakes are simply too high to do otherwise.

Finally, I wholeheartedly believe “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be”; and I will do everything in my power as president to promote these cherished principles.

ht: Tommy Oliver