High Court Caricature

But the Framers wrote the Constitution with expansive language that invites, even demands, interpretation and judgment. And the Constitution assigns the court a deliberately counter-majoritarian role, to protect the individual against the excesses of the majority. McCain need look no further than Loving for an example he would no doubt find justified.

As Richard Posner, a Reagan appointee to the U.S. Court of Appeals for the 7th Circuit, writes in his new book, "How Judges Think," the Supreme Court, especially when deciding constitutional cases, is inevitably "a political court"--no matter if its members choose not to acknowledge, even to themselves, that uncomfortable fact.

So when should judges intervene, and when should they abstain? Where the Constitution speaks in general terms, what is the right way to apply its lofty phrases? And what is the proper degree of deference that should be accorded a president in selecting judges, and the proper scope of congressional questioning?

These are important matters for general election debate. Instead, McCain serves up red herrings -- or, more precisely, red meat -- for his still-skeptical base.

marcusr@washpost.com