The first Monday in October

As the Supreme Court opens up its new season today, it is worthwhile to remember that that is one of the most important reasons to vote for John McCain. Senator Obama revealed what this supposed expert on Constitutional law looks for in an appointee.

"That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

Do we really want four to eight years of judicial appointments of judges who decide cases based on their "empathy"? While that sounds nice and good, once we launch into a world in which judges decide cases based on empathy we have left behind a nation based on laws and entered into one based on feelings.

And I would disagree with this Washington Post journalist's description of what judicial activism is.

Even the charge of "judicial activism" -- which is sometimes measured by a court's readiness to overrule legislation approved by a democratic body -- is becoming harder to define. Liberals, along with Kennedy, rejected Congress's mandate on the legal options for terrorism detainees. Conservatives, along with Kennedy, set aside the District of Columbia's gun-control law.

Striking down a law passed by a legislature doesn't necessarily involve judicial activism if that law was unconstitutional. Legislators have a natural inclination to think that their powers stretch to whatever they want to do. Such a definition of activism betrays a basic misunderstanding of what conservatives want when they talk about a conservative court. That doesn't mean always deferring to legislatures, but deferring to them when the Constitution is silent on a question.

So, on this first Monday in October when the Supreme Court comes back into session, I ope that conservatives who might be fed up with John McCain for other reasons will start imagining what the courts would look like after a two-term Obama presidency.