Issue Position: Judicial Philosophy
Strict Constructionist Philosophy
"Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power. For that reason, a judge's decisions must rest on more than his subjective conviction that he is right, or his eagerness to address a perceived social ill."
Remarks to The Federalist Society
November 16, 2006
John McCain believes 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, John McCain 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 judges 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 he said to the Federalist 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 for John McCain. He has long held it. It is reflected in his 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 his longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in his 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. John McCain's 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. His judicial appointees will understand that it is not their role to usurp the rightful functions and powers of the co-equal political branches. He will look for candidates who respect the lawmaking powers of Congress, and the powers of the President.
John McCain believes 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 he was running for President in 1999, he promised that, in appointing judges, he 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 he strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why he would seek men and women like them as his judicial appointees.