By BRAD WARTHEN
Editorial Page Editor
AT THE OUTSET, John McCain had a great head start with me — on experience, national security, foreign affairs, bipartisanship, and his oft-demonstrated willingness to do the right thing regardless of political consequences.
As Labor Day approached, I began to doubt. First, he picked Sarah Palin. I don’t have as low an opinion of her as many seem to, but she’s no Joe Lieberman. Then, Sen. McCain ran a particularly ham-handed fall campaign, one that simply did not communicate his virtues clearly to the voters. As I had with Bob Dole in 1996, I wondered: If he can’t run a campaign, how can he run the country?
But my doubts ended during the third debate. Sen. Barack Obama “won” on style, on cool, on demeanor, much as John Kennedy did in 1960. But I was paying attention to what they said. That’s when I decided I had to stick with McCain.
Let’s consider several things they said about one subject, judicial selection.
This column is not about abortion. I knew already that I disagreed with Obama about abortion. I’m a Catholic, and I’m not a Joe Biden kind of Catholic. But I’ve supported Democrats (such as Sen. Lieberman) who didn’t challenge their party on abortion; I’m not a single-issue voter.
Aside from abortion itself, I find Roe v. Wade appalling in two ways: I don’t find a “right to privacy” in the Constitution. Secondly, the ruling has had a devastatingly polarizing effect on our politics. My respect for the rule of law is such that I’d be willing to put up with the political division for a ruling rightly decided, but this one didn’t qualify.
So the sooner Roe is overturned, the better. Obama strongly disagrees. And in rationalizing what he sees as the imperative to protect Roe, he turns against several other important principles that I believe a president should respect, from the separation of powers to the proper role of politics.
I’ll review each of these points briefly, starting with the one that concerns me least:
Sen. Obama seems to judge court rulings based more on their policy effects than on legal reasoning. In his autobiography, Dreams from My Father, he wrote, “The answers I find in law books don’t always satisfy me — for every Brown v. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed.” That hinted to me that he cares more about good outcomes than law. But I forgot about it until I heard him say in the debate that “I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.” That third qualification disturbed me because it seemed to demand a political sensibility on the part of judges, but I wasn’t sure.
Much harder to overlook is the hard fact that despite his opposition to Roe, John McCain voted to confirm two Clinton nominees, Justices Stephen Breyer and Ruth Bader Ginsburg. Why? “Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences.” Senators should respect the president’s prerogative to the point that they should refuse to confirm only those nominees who are obviously unqualified. “This is a very important issue we’re talking about,” he added. Sen. Obama has had two opportunities in his brief Senate career to confirm highly qualified nominees — Samuel Alito and John Roberts — and voted against both. Yes, confirmation is different from nomination, but I would rather have someone who has demonstrated McCain’s relative freedom from ideology doing the nominating.
Perhaps worst of all, Sen. Obama was dismissive and misleading regarding the proper roles of the states with regard to the federal government, and the political branches with regard to the judiciary. Regarding Roe, Sen. McCain said, “I thought it was a bad decision…. I think that… should rest in the hands of the states. I’m a federalist.” He was saying abortion law should be returned to state legislatures, where we make most of our laws, rather than having it in a special, hands-off category.
In answering, Mr. Obama shocked me in two ways, saying “I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.”
If a right to privacy exists, it is at best inferred from the Constitution. The author of the “right,” Justice William O. Douglas, found it in “penumbras” and “emanations.” And yet Sen. Obama equated it to the very first rights that the Framers chose to set out in black and white, and subject to ratification. That a Harvard-trained attorney would do that may not boggle your mind, but it surely does mine.
Then there’s that bit about not subjecting such a hallowed “right” to “state referendum,” or “popular vote.” Sen. McCain had suggested nothing of the kind. In a representative democracy, such questions are properly decided neither by plebiscite nor by judicial fiat, but by the representatives elected by the people to make the laws under which we will live.
There are many issues to consider in this election, from national security to the current economic crisis. I can’t go into all of them in this column. But in just those few moments in that one debate, John McCain clearly demonstrated to me a far greater respect for the proper roles of the president, the Congress, the courts, the states, and the people themselves in making us a nation of laws and not of men.
Go to thestate.com/bradsblog/.
By BRAD WARTHEN