Former Republican Bob Barr is the Libertarian nominee for President. He had a column yesterday in the Wall Street Journal titled “Judges Are No Reason to Vote for McCain”. I wish I had time to list all of the fallacies in Barr’s column.

Let’s start with this one: “Mr. McCain has endorsed, in action if not rhetoric, the theory of the ‘unitary executive,’ which leaves the president unconstrained by Congress or the courts.” But, the “unitary executive” concept involves who in the executive branch wields power — not how much power the executive branch has, as both Jonathan Adler and Ilya Somin have pointed out in response to Barr’s column.

Barr also suggests that McCain does not mind the judicial philosophies of Bill Clinton’s Supreme Court nominees: “He has never paid much attention to judicial philosophy, backing both Clinton Supreme Court nominees – Stephen Breyer and Ruth Bader Ginsburg.” Again, Barr does not know what he is talking about. Ann Althouse properly criticized the Obama campaign for the same kind of accusation against McCain (and so did I). Althouse correctly said:

The role of the President and the role of a Senator are very different when it comes to Supreme Court appointments. The President’s nomination identifies one person from the pool of possible nominees and therefore has a tremendous amount of latitude in searching for someone who he thinks will decide cases to his liking, who shares his ideology.

Barr bounces from one outrageous statement to another, in his WSJ column. Consider this one:

[M]any Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired. Judge-made rights are wrong because there is no constitutional warrant behind them. The Constitution leaves most decisions up to the normal political process.

In actuality, Barr seems to be describing himself rather than describing McCain. You wouldn’t know it from his disingenuous column today in the Wall Street Journal, but Barr is a wholehearted supporter of the theory of an imperial judiciary that can legalize any activity that it wants as long as the activity occurs in private. Take, for example, the Supreme Court’s decision in Lawrence v. Texas. That decision purported to legalize sodomy, and Barr wholeheartedly supported that decision. The Court’s reasoning in that case was no different than in other judicial travesties such as Dred Scott and Lochner. The result in Lawrence – viewed as judicial legislation – was far more reasonable and compassionate than that of either Dred Scott or Lochner, but the legal reasoning was the same utter, dangerous nonsense. And yet Barr said: “I thought it was a very sound decision based on privacy.” By the exact same legal reasoning, the Court could concoct a right to adult incest, Russian roulette, and heroin, not to mention abortion, spousal abuse, and dog fighting. The list is endless. But, of course, this isn’t about legal reasoning at all: it’s about legislating from the bench.

Cross-posted at ConfirmThem.


Tags: John McCain