do you want conservative judges? better vote for Bob Barr

Bob Barr in the WSJ blowing up McCain on his probable judicial picks...

The judiciary is becoming an important election issue. John McCain is warning conservatives that control of today's finely balanced Supreme Court depends on his election. Unfortunately, his jurisprudence is likely to be anything but conservative.

The idea of a "living Constitution" long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing "judicial activism" and proclaiming their fidelity to "original intent." However, many 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.

However, the Constitution sometimes requires decisions or action by judges – "judicial activism," if you will – to ensure the country's fundamental law is followed. Thus, for example, if government improperly restricts free speech – think the McCain-Feingold law's ban on issue ads – the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

Yet even as Republicans support and defend the Second Amendment, they ignore the Constitution when it says that only Congress can suspend habeas corpus, and then only in event of an invasion or rebellion. And if a president says we are "at war," Republicans believe he can ignore laws passed by Congress.

Mr. McCain is a convenient convert to the cause of sound judicial appointments. He has never paid much attention to judicial philosophy, backing both Clinton Supreme Court nominees – Stephen Breyer and Ruth Bader Ginsburg. He also participated in the so-called "Gang of 14," which favored centrist over conservative nominees as part of a compromise between President George W. Bush and Senate Democrats.

What's more, Republican Court appointments have often turned liberal. Earl Warren, William Brennan and Harry Blackmun were GOP appointees to the high court. So are "liberals" John Paul Stevens and David Souter, as well as centrists Anthony Kennedy and former Justice Sandra Day O'Connor. There is no reason to believe that a President McCain, once freed from the need to seek conservative support, would support more philosophically sound candidates....

But even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.

For instance, most conservatives believe that the First Amendment safeguards political speech. Mr. McCain does not. Indeed, it is the liberal bloc which upheld McCain-Feingold's restrictions on ads criticizing incumbent politicians, while the conservative members, led by Chief Justice Roberts and Justice Samuel Alito, forged a more recent majority overturning parts of McCain-Feingold.

In his May 2008 speech on judges at Wake Forest University, Mr. McCain talked about the importance of "the constitutional restraint on power," but in practice he recognizes no limits on government or executive-branch authority. In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress.

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. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.

It is important to choose judicial nominees carefully. But that is no reason for conservatives to vote for Mr. McCain. He has demonstrated no more interest in "conserving" the Constitution, and its principles of limited government and individual liberty, than has Mr. Obama.

The best way to get better judges is to expand candidate choice beyond the Republicans and Democrats. Supporting the political status quo guarantees more jurisprudence based on political convenience, not constitutional principle.