"WARREN: OK. The courts. Let me ask it this way. Which existing Supreme Court justice would you not have nominated?So, Senator Obama seems to disagree with the constitutional interpretations of Justices Thomas, Scalia, and Roberts. How about Senator McCain:
OBAMA: That's a good one. That's a good one. I would not have nominated Clarence Thomas. [ applause ] I don't think that he -- I don't think that he was as strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution. I would not nominate Justice Scalia, although I don't think there's any doubt about his intellectual brilliance, because he and I just disagree. He taught at the University of Chicago, as did I in the law school.
WARREN: How about John Roberts?
OBAMA: John Roberts, I have to say was a tougher question only because I find him to be a very compelling person, you know, in conversation individually. He's clearly smart, very thoughtful. I will tell you that how I've seen him operate since he went to the bench confirms the suspicions that I had and the reason that I voted against him, and I'll give you one very specific instance and this is not a stump speech.
WARREN: All right.
OBAMA: I think one of the -
WARREN: I think --
OBAMA: Right, exactly. I'm getting the cues. I'm getting the cues. One of the most important jobs of, I believe the Supreme Court is to guard against the encroachment of the executive branch on the other, the power of the other branches.
OBAMA: And I think that he has been a little bit too willing and eager to give an administration, whether it's mine or George Bush's, more power than I think the Constitution originally intended."
[WARREN:] "The first one is on the courts. Which existing Supreme Court Justices would you not have nominated?Senator McCain seems to disagree with the constitutional interpretations of Justices Ginsberg, Breyer, Souter, and Stephens.
MCCAIN: With all due respect, Justice Ginsburg, Justice Breyer, Justice Souter, and Justice Stephens.
WARREN: Why? Tell me why.
MCCAIN: Well, I think that the president of the United States has incredible responsibility in nominating people to the United States Supreme Court. They are lifetime positions, as well as the federal bench. There will be two or maybe three vacancies. This nomination should be based on the criteria of proven record, of strictly adhering to the Constitution of the United States of America and not legislating from the bench. Some of the worst damage has been done by legislating from the bench. (APPLAUSE).
And by the way, Justices Alito and Roberts are two of my most recent favorites, by the way. They really are. They are very fine. (LAUGHTER). And I'm proud of President Bush for nominating them."
In my view the Constitution defines a limited national government and as written it seems to me to protect individual economic liberty. The opinions of Justices Scalia, Thomas, Roberts and Alito are mostly consistent with this view, while the opinions of Justices Ginsberg, Breyer, Souter, and Stephens are inconsistent with this view. I agree with McCain's answer.
I also must mention one pet peeve of mine which comes up in Senator Obama's answer:
". . . more power than I think the Constitution originally intended."I don't believe a piece of paper can have intentions.