In yesterday's Wall Street Journal, Bob Barr took John McCain to task for his lousy judicial philosophy, arguing that conservatives shouldn't get too excited at the prospects of a McCain-appointed Supreme Court. For one, McCain doesn't think that the First Amendment protects all forms of political speech, which is only a problem, I suppose, if you hold the quaint opinion that the Constitution means what it says. Then there's McCain's sweeping view of presidential power:
In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress.
Mr. McCain has endorsed, in action if not rhetoric, the theory of the "unitary executive," which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.
Interestingly, Barr suggests that cats and dogs won't start living together under an Obama Court:
Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, and criticizing the recent decision overturning the death penalty for a child rapist. With the three members most likely to leave the Supreme Court in the near future occupying the more liberal side of the bench, the next appointments probably won't much change the Court's balance.
Finally, after some throat clearing about the risk of "judge-made rights," Barr makes a great point about the judiciary's duty to check the other branches:
However, the Constitution sometimes requires decisions or action by judges—"judicial activism," if you will—to ensure the country's fundamental law is followed. Thus, for example, if government improperly restricts free speech—think the McCain-Feingold law's ban on issue ads—the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.