Drawing a contrast when it comes to picking judges

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To appreciate the importance of the judges issue for GOP candidates, consider Karl Rove’s declaration that "There's no doubt in my mind that [Republicans] won races all throughout the country" on the judges issue. "If Bush said judges, people cheered. … [T]hey'd know that something was fundamentally flawed with the courts, … that Bush could be trusted to appoint good people to the courts."
 
Public concern about the courts explains why the judges issue is always the basis for one or more questions when presidential debate season rolls around. In 2008, moderator Bob Schieffer asked Obama and McCain “Could either of you ever nominate someone to the Supreme Court who disagrees with you on [overturning Roe v. Wade]?” This time, the judges question will likely involve the Supreme Court’s controversial ObamaCare decision. Expect the query to Gov. Romney to go something like this:

“Chief Justice Roberts’ decision in the ObamaCare case this June was lauded by many Democrats as a model of judicial restraint and statesmanship, while at the same time angering many conservatives who thought ObamaCare should be struck down as unconstitutional. If you have the chance to appoint a Supreme Court Justice, would you look for a nominee with Roberts’ statesmanlike approach to the law or one with a more aggressively conservative approach?”
 
If answered adeptly, such a question provides Mitt Romney with a multi-pronged opportunity to energize the GOP’s conservative base while simultaneously giving swing voters and Ron Paul libertarians a compelling reason to vote for the Governor. Mr. Romney should use the opportunity to make these six important points:
 
(1) He will appoint judges who stick to interpreting the law rather than acting as statesmen, politicians, arbiters of empathy, or anything else outside the judicial role envisioned by the Constitution.
 
(2) The Constitution puts specific limits on what the federal government can do, including the limits on taxing, spending, and regulation of interstate commerce at issue in the ObamaCare case. Judges should be vigorous rather than restrained in enforcing those limits and other explicit provisions of the Constitution, and Romney’s appointees – unlike Obama’s Supreme Court appointees and Chief Justice Roberts – will do just that.
 
(3) Enforcing the constitutional limits on federal power is an economic issue, as well as a legal one, because it is arguably the only reliable way to shrink the size of the federal government and bring federal spending and debt under control. At a time when Americans want to reduce the federal deficit, it makes no sense to elect a president like Obama who has and will continue to appoint judges who believe there are no meaningful limits on federal authority.
 
(4) The limits on federal authority are the principled reason why Gov. Romney enacted a healthcare plan in Massachusetts but opposes ObamaCare. ObamaCare exceeds the constitutional limits on Congress’s taxing, spending and commerce powers, limits which don’t apply to the states and, in fact, were created precisely to allow states to pursue their own policies, including on healthcare.
 
(5) Romney will select nominees who understand that on issues not explicitly addressed by the Constitution – such as gay marriage and abortion – judges should be restrained and defer to the democratic process in Congress and the states. This principled, non-ideological approach to divisive social issues has broad appeal to both conservatives and moderates, and stands in sharp contrast to the approach favored by Obama and his appointees, namely the judicial creation of new constitutional rights.
 
(6) If Obama gets the chance to replace either Justice Scalia or Justice Kennedy – both of whom would be 80 by the end of a second Obama term – the Supreme Court will have a majority of liberal, activist judges eager to invent new constitutional rights. As a result, the Supreme Court would, for example, likely mandate racial preferences, abolish the death penalty and individuals’ right to own guns, and strip "under God" from the Pledge of Allegiance. If voters are looking to avoid an extreme social agenda, it’s Obama and his judicial appointees they need to fear.
 
Similar distinctions should be made by conservatives running to win or retain seats in the United States Senate, the other major player in judicial appointments. These points are particularly helpful to any senate candidate whose opponent is on record as supporting the most radical of President Obama’s judicial picks – a description that applies to all Democratic senators currently running for reelection. Let the voters decide how they feel about the incumbent’s support for Obama nominees like Goodwin Liu, the unabashed advocate for judicial activism who believes courts should create constitutional rights to “distributive justice” and welfare.
 
Despite deep divisions on issues ranging from gay marriage to healthcare, a majority of Americans across a wide range of political ideologies share concerns about Congress and the federal judiciary exceeding the respective limits on their authority. By adeptly answering the judges question on Wednesday, Governor Romney can show that he understands those concerns and plans to address them through his judicial appointments.

Levey is a constitutional law attorney and president of the Committee for Justice in Washington, D.C.