The Federalist Society Online Debate Series
Presidential Candidates on Judicial Philosophy
February 4, 2008
On November 4, 2008 American voters will elect the forty-fourth President of the United States. In recent times, Presidents have had the opportunity to appoint close to two hundred Article III judges in a given term, including two Justices to the Supreme Court. These judges serve for life.
In order to educate the public on how various Presidential candidates plan to fulfill this important responsibility the Federalist Society has invited each of the major Presidential contenders- including John McCain and Mitt Romney, from whom we have received initial submissions, as well as, on the Republican side, Mike Huckabee and Ron Paul, and on the Democratic side, Hillary Clinton, and Barack Obama- to discuss the kinds of judges he or she would appoint if elected President. We have posted all the material received to date. We continue to welcome and will post initial responses from remaining campaigns, as well as further responses from Senator McCain and Governor Romney.
Updated on 2/5/08 with comments from Governor Mike Huckabee and Representative Ron Paul.
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 Mitt Romney
Today, too many of our country's most important issues are being decided by unelected judges. We need men and women who will adhere to the Constitution and the rule of law. Our nation simply cannot afford judges who legislate from the bench, and who are willing to depart from the Constitution to advance a narrow agenda. When we have judges of the intellectual capabilities of Chief Justice Roberts and Justices Scalia, Thomas and Alito, who have a demonstrated commitment to following the law and the Constitution, we can preserve our democracy where the American people are guiding our nation.
I believe a judge’s most solemn obligation is to the 'rule of law,' a phraseology of which I am particularly fond since it comes from the original Massachusetts constitution of 1780. It reminds us that those appointed to the federal bench must leave behind their partisan passions and retain only one: the passion for 'equal justice under law.' Respect and fidelity to the rule of law and equal justice under law must guide the judicial mind and, in fact, they are required by the oath all federal judges must take.
Those holding themselves out for the Presidency have an equally solemn obligation: to find women and men for judicial service who respect the rule of law and who will be faithful to the law as enacted. As President, I intend to nominate judges who respect the separation of powers, are committed to judicial restraint, and have a genuine appreciation of the text, structure, and history of our Constitution. The judges I nominate will recognize, as I do, that as Justice Scalia once said, the Court ought not take the field as some kind of 'junior-varsity Congress.' That would wrongly displace the first-string legislature, drawn from our deepest pool of talent – 'we, the people.'
In my campaign for the presidency, I am proud to have the support of many distinguished legal professionals, scholars and business leaders, including Douglas W. Kmiec and David McIntosh, who serve as Co-chairs of the Romney for President Committee on the Constitution and the Courts. It is an honor to have their counsel on federalism, separation of powers and judicial selection and as we address the most important legal issues confronting our nation.
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.
Representative Ron Paul
As president, I would only appoint federal judges who hold a strict constructionist view of the Constitution, and respected every provision of the Constitution, including the second, ninth, and tenth amendments. I would also work with Congress to pass legislation limiting federal jurisdiction over issues that the Founder's intended to be resolved by the states, local governments, and the people.
It’s sad that our Republic is in such a state that so many Americans see their freedoms as being dependent on a single Supreme Court justice. Federal judges were never meant to wield the tremendous power that they do in modern America. Our Founders would find it inconceivable that a handful of unelected, unaccountable federal judges can decide social policy for the entire nation.
Dozens of political pressure groups stand ready to launch an immediate public relations attack on any judge nominated by a president, while dozens of others stand ready to support the nominee no matter what. These groups reflect the unfortunate reality that millions of Americans unquestioningly support or oppose judicial nominees based solely on the party affiliation of the current president. Once again, blind loyalty to political parties has politicized a process that our Founders never intended to be political. When we as voters and citizens allow the nomination of judges to become political, we have only ourselves to blame for the politicization of our courts themselves. When courts become politicized, judges not surprisingly begin to act like politicians.
Judicial activism, after all, is the practice of judges ignoring the law and deciding cases based on their personal political views. With the federal judiciary focused more on legislating social policy than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.
Congress is guilty of enabling judicial activism. Just as Congress ceded far too much legislative authority to presidents throughout the 20th century, it similarly has allowed federal judges to operate wildly beyond their constitutional role. In fact, many current members of Congress apparently accept the false notion that federal court judgments are superior to congressional statutes. Unless and until Congress asserts itself by limiting federal court jurisdiction, judges will continue to act as de facto lawmakers.
The congressional power to strip federal courts of jurisdiction is plainly granted in Article III, and can restore the people’s ability to decide social questions themselves without having to go through the laborious process of amending the constitution. On the contrary, any constitutional amendment addressing judicial activism would only grant legitimacy to the dangerous idea that social issues are federal matters. Giving more authority over social matters to any branch of the federal government is a mistake, because a centralized government is unlikely to reflect local sentiment for long. Both political parties are guilty of ignoring the 9th and 10th amendments, and federalizing whole areas of law that constitutionally should be left up to states. This abandonment of federalism and states’ rights paved the way for an activist federal judiciary.
The public also plays a role in the erosion of our judiciary. Since many citizens lack basic knowledge of our Constitution and federalist system, they are easily manipulated by media and academic elites who tell them that judges are the absolute and final arbiters of U.S. law. But the Supreme Court is not supreme over the other branches of government; it is supreme only over lower federal courts. If Americans wish to be free of judicial tyranny, they must develop a basic knowledge of the judicial role in our republican government.
As a society, we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not. It’s also time for Congress to start establishing clear limits on federal judicial power.