Would McCain Change Court? over the Last Century, Most Republican-Appointed Supreme Court Justices Have Not Worked to End Judicial Activism. Would McCain Buck the Trend with His Appointees?

Article excerpt

What effect would a John McCain presidency have on the Supreme Court? That question is perhaps even more important this election year, since three or four Supreme Court justices are likely to retire during the next presidential term.

Would McCain nominate judges who would change the present ideological mix of the court and move it in the conservative direction? Would he nominate judges who vote to overturn precedents such as the 1973 Roe v. Wade decision that legalized abortion nationwide? McCain says that this is exactly what he would do. "John McCain believes Roe v. Wade is a flawed decision that must be overturned," his campaign website says, "and as president he will nominate judges who understand that courts should not be in the business of legislating from the bench."

McCain supporters are agog about making sure that no more Stephen Breyers and Ruth Bader Ginsburgs are appointed to the court (overlooking, or not knowing, the fact that McCain voted for both nominations), and are adamant that only a vote for McCain will save us from that fate. This includes even conservative-minded Americans who disagree with McCain's positions on other issues such as immigration "reform" (he supports amnesty for illegal aliens though he does not call it that), but who believe that, as a Republican, he would at least nominate conservative judges.

However, contrary to the conventional wisdom, the historical record shows that most Republican-appointed Supreme Court justices over the last century have abandoned the restraints on government power set forth in the Constitution. Moreover, McCain's own positions and pronouncements do not give a lot of hope that he would break this pattern, his campaign rhetoric to the contrary notwithstanding.

Looking Back

Before considering further the kind of justices McCain might nominate as president, let's first survey the historical record of past and present GOP-nominated Supreme Court justices. For those of us who have always heard that Republicans nominate conservative justices, this record should surprise--even shock.

Republican President Herbert Hoover appointed Charles Evans Hughes as chief justice of the Supreme Court in 1930. This despite the fact that long before this appointment Justice Hughes had opined: "We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution." Such relativistic language, placing no authority in the actual words of the Constitution, but only in "what the judges say it is," is the essence of legal positivism--the legal theory that has led to the worst excesses of judicial tyranny in the last century.

Hughes' record as governor of New York prior to being appointed chief justice, demonstrated his long-held belief in government control of many of aspects of life. For example, he advocated that the government set mandated freight rates for railroads, a harbinger that he was an opponent of the free market. As chief justice, Hughes affirmed most of Democratic President Franklin D. Roosevelt's extra-constitutional New Deal legislation.

Chief Justice Hughes was assisted in supporting the vast expansion of federal power under FDR by two fellow GOP-appointed justices--Harlan Fiske Stone (nominated by Calvin Coolidge) and Benjamin Cardozo (nominated by Hoover).

Republican President Dwight Eisenhower nominated a string of statist jurists to the High Court during the 1950s--including Earl Warren as chief justice of the United States in 1953. Eisenhower said at the time that he wanted a "conservative" justice and that Warren "represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court." Warren, however, turned out to be one of the most activist chief justices in our history.

Under Earl Warren, the court decided Brown v. Board of Education, which used federal power to eliminate discrimination in education by unconstitutionally usurping the power of the states. …