Washington Injury Law Blog

Sen. John McCain finally explained his plans for appointing federal judges if elected and it’s scary in my view. As a Republican he is conservative by nature and appears to be pandering to the conservatives in the party with his judicial appointment views.

McCain vows to appoint judges who are faithful to the Constitution and do not engage in what he calls “the common and systematic abuse of our federal courts.”  He is against what he calls “activist judges” whom he feels decide cases based on personal beliefs rather than the law. I believe this is an over exaggeration on McCain’s part. In ten years of law practice I have not read a federal cases where the judge did not have a basis in law for the decision being made.

There are a couple of camps that judges fall into when discussing decision making philosophy. One camp is the very conservative “strict construction” and the other is the “living document” philosophy.  According to the strict construction camp if it is not specifically written in the Constitution or law then it cannot be. So unless a law grants a specific legal right in the words of the law no legal right exists. This can be troublesome when talking about interpreting the meaning of the U.S. Constitution, which was written over 200 years ago.

For example it is generally accepted by everyone that you as a person enjoy the right to a certain amount of privacy that flows from the U.S. Constitution. However, the Constitution does not specifically say that. The 4th Amendment says you have the right to be free from unreasonable searches and seizures by the government (that’s the police), but it does specifically say you have the right to privacy. However, the federal courts have interpreted the 4th amendment to also mean that inherit in the right to be free of unreasonable searches is an underlying privacy right.

It can get even more dicey when we start trying to apply new technology issues to the wording of the Constitution. The framers of the Constitution in all likelihood had no concept that one day people would walk around with wireless computers with electronic information of every kind stored on them which could be freely transmitted over the airwaves with the push of a button. Without privacy laws your private information may be freely accessible to anyone who wants it without your knowledge or right to object.

According to the “living document” camp the wording of the Constitution or other laws are examined in their entirety. If a question is not addressed by the actual words, then the underlying assumptions or basis for the law can be accessed to find the answer to a new legal question not foreseen when the law was originally written. I subscribe to this school of thought because I believe our Constitution and laws need to keep up with the times.

The pursuit  of truth and justice should be the most important job of the courts. Interpreting laws as narrowly as possible, like the conservatives tend to do, does not promote the pursuit of justice. Times shift and change quickly, and new and novel legal questions confront federal judges everyday. God forbid, you should find yourself before a judge deciding such an issue and he/she rules against you, denying justice, because Congress failed to keep up with the changing times and change the law as was needed.

There are three branches of government, legislative (Congress), judicial (Courts) and executive (President). Each branch checks and balances the others. If one branch is not happy with an action of another branch, then corrective other action can be taken. In the case of the courts deciding a case that Congress disagrees, Congress can enact a new law to correct a mistake they believe the court made. Congress does this with amazing speed when they feel it is important, otherwise law changes are be excruciatingly slow if ever made.

It all boils down to whether you want to keep the rights we have currently or risk losing more rights, like choice to have an abortion or be free from homeland security putting a video camera in you bedroom. If McCain is elected it looks like we’ll be losing some of those rights we’ve become accustomed to enjoying.