David Savage has a piece in today's Los Angeles Times taking a look at the difference between the McCain and Obama approaches to the federal judiciary. Savage writes:
The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.
My first instinct when I read this was to get annoyed with Savage--surely liberals, no less than conservatives, believe judges should follow the law. The disagreement is about what the law is, and liberals are put at a major political disadvantage if the public comes to believe that bleeding-heart Democratic judicial appointees just go around enacting their policy preferences willy nilly, without regard to what the law actually says. But, in fairness to Savage, the problem here is that Democrats are often all too eager to unilaterally cede that ground. From later in his article:
"Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time," [Obama] said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.
"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."
In a speech this month, McCain derisively quoted Obama's reference to a judge's "deepest values" and "empathy." "These vague words attempt to justify judicial activism. Come to think, they sound like an activist judge wrote them," McCain said.
I understand the point Obama's trying to get at here--namely, that once you reach very difficult legal questions, a judge's personal ideology inevitably colors his or her views of, for instance, whether a particular state interest is "compelling" or whether an instance of governmental entanglement with religion is "excessive." There's just no wholly neutral way to answer such questions. But, from a rhetorical standpoint, this is too meta a point to be making. Obama (and liberals in general) ought to spend less time criticizing conservative jurisprudence for being heartless, and more time criticizing it for being wrong, as a matter of law. As John Roberts put it in his confirmation hearing, the little guy should win only when the law is on his side.