McCain and Obama both criticized the Supreme Court for rejecting the death penalty for the rape of a child, but McCain points to the real distinction.

WaPo reports:

McCain emphasized that he would seek out Supreme Court appointees along the lines of Chief Justice John Roberts and Justice Samuel Alito, saying they're the kind of jurists who will rule in favor of crime victims.

"They will be the kind of judges who believe in giving everyone in a criminal court their due: justice for the guilty and the innocent, compassion for the victims, and respect for the men and women of law enforcement," he said. "In all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all, the rights of victims."...

While McCain noted that Sen. Barack Obama (D-Ill.) criticized [Kennedy v. Louisiana], he suggested that Obama would back the same kind of liberal justices who overruled the Louisiana law this month.

"More to the point, why is it that the majority includes the same justices he usually holds out as the models for future nominations?" he said. "My opponent may not care for this particular decision, but it was exactly the kind of opinion we could expect from an Obama Court."

This is exactly the point I wanted to see made. What is Obama's counterattack? From the WaPo piece:

Obama spokesman Tommy Vietor questioned why McCain would suggest only "an Obama Court" would produce rulings like the kind the Court just issued concerning child rapists, when the GOP senator backed four of the five judges who just ruled the death penalty was not appropriate for such crimes.

"Senator McCain voted for 4 of the 5 judges who supported this flawed ruling, which is why this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of," Vietor said....

What's disingenuous is Vietor's argument. 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.

A Senator can only question this one individual and vote up or down. When someone with the qualifications of Anthony Kennedy, David Souter, Ruth Bader Ginsburg, or Stephen Breyer is nominated, it is very hard for a Senator to justify voting no, even if he would not have nominated that person. In fact, he should vote yes — out of an understanding of the President's role and respect for the people who elected that President.

Indeed, as I said at the time of his confirmation, it was outrageous to vote against the spectacularly qualified John Roberts:

As to those 22 Democrats who voted no, they have openly embraced an ideological view of the Court from which they can never credibly step back. For them, appointing Supreme Court Justices is a processes of trying to lock outcomes in place, and we shouldn't believe them if in the future they try to say otherwise.

Of course, Barack Obama was one of the 22.

A year ago, Obama talked about why he rejected John Roberts. Roberts said "he saw himself just as an umpire":

“But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

If you really believe that about the cases that are determined by "heart," wasn't Kennedy v. Lousiana a heart case? Writing for the majority, Anthony Kennedy said:

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment....

[We] insist upon confining the instances in which capital punishment may be imposed....

As it relates to crimes against individuals, ... the death penalty should not be expanded to instances where the victim’s life was not taken....

Surely, this is what Obama wants from a Justice. How can he credibly assert otherwise?