‘ ‘ ‘ The presidential power of appointing justices to the Supreme Court is an issue that will… ‘ ‘ ‘ The presidential power of appointing justices to the Supreme Court is an issue that will undoubtedly play a major role in Washington under a future McCain or Obama administration. The Roberts Court consists of six justices aged 69 or older, one of which, John Paul Stevens, is 88. Thus, it is necessary to spell out what kind of judges our nation needs, clarify McCain and Obama’s divergent philosophies on the appointment of judges to the federal bench, and forecast the effects that such appointments will have on the legal integrity of our nation. ‘ ‘ ‘ The current court’s penchant for 5-4 decisions made headlines throughout its last term, most notably in the habeas corpus case Boumediene vs. Bush. The outcome of this case prompted a resounding dissent from Justice Scalia, which all voters should heed in this upcoming election. Boumediene establishes the right of a detained enemy combatant to have access to civil courts in the United States, potentially bestowing habeas corpus privileges on the very enemies who are fighting against and killing our own men and women in service. ‘ ‘ ‘ At the heart of Scalia’s dissent and the future of American constitutional law is the doctrine of originalism that Scalia defends: the legal tradition handed down several generations by the Founding Fathers themselves. This doctrine interprets the Constitution by looking to the journals from the Federal Convention of 1787, the Federalist Papers, the ratifying debates in the individual states and the English common law theories behind the specific provisions of the Constitution. ‘ ‘ ‘ To protect our liberty and Constitution, the next president must be committed to appointing judges who will interpret the Constitution like Justice Scalia. Both candidates have been outspoken about the types of judges they would nominate, and it is imperative that we choose the candidate who will appoint justices who do not legislate from the bench and write dangerous opinions like the majority’s decision in Boumediene. ‘ ‘ ‘ According to his Web site, McCain believes that ‘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.’ He has frequently reiterated in the campaign his desire to appoint strict constructionist judges to the bench. Though some of his own stances on the Constitution are shaky with conservatives ‘mdash; notably, his position on campaign finance reform ‘mdash; McCain’s commitment to appointing non-activist judges seems genuine. ‘ ‘ ‘ Obama, who voted against the confirmations of Roberts and Justice Samuel Alito, takes a radically different approach to his judicial philosophy. In July 2007, Obama depicted the profile of the kind of judge he would appoint to the Supreme Court. ‘ ‘ ‘ According to his Web site, Obama believes that ‘we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.’ ‘ ‘ ‘ To use this philosophy as the primary criteria in making judicial appointments to the Supreme Court, where inscribed on the building’s facade are the words ‘Equal Justice Under Law,’ would contradict our country’s legal tradition. Imagine George Washington making appointments to the first court based on what groups that certain judges would favor. Apparently, some groups deserve more equality of justice under the law than others in Barack Obama’s America. His philosophy on choosing judges betrays our Founders’ intention of making the United States a nation of laws and not of men. ‘ ‘ ‘ Considering that I don’t fall under any of the categories that Obama spelled out as privileged classes in a court of law, I guess I should be worried about my status as an American under an Obama administration. It is appalling that a presidential candidate would reveal such shallow notions about the Constitution and the law, but it is even more disconcerting to think what Obama and his judges would do to warp the rule of law in America. ‘ ‘ ‘ I am confident that John McCain will at least appoint judges to the federal bench who will not subscribe to Obama’s prejudicial jurisprudence. You can never be sure what type of strict constructionist judges McCain will find, but you can be sure that he will not nominate judges based on a predetermined hierarchy of litigants. ‘ ‘ ‘ Justice Scalia closed his Boumediene dissent by saying that ‘the Nation will live to regret what the Court has done today.’ Let’s hope that Americans will not have to live to regret the election of a president who would destroy the notion of ‘Equal Justice Under the Law’ by appointing prejudiced justices to the Supreme Court. E-mail Bart at [email protected].