McCain’s Speech on Judges
McCain clearly laid out the vast difference between his understanding of the proper role of the courts and the far more activist role favored by his potential Democratic opponents.
“My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power.”
“Senators Obama and Clinton … don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.”
“[A] justice of the court, as Senator Obama explained it – and I quote – should share ‘one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.’ These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them.”
McCain mentioned his involvement in the bipartisan Gang of 14 agreement and made it clear that, on the judges issue, he is the candidate with a proven record of bipartisanship.
“Senator Obama in particular likes to talk up his background … as someone who can work across the aisle to get things done. But when Judge Roberts was nominated,… [h]e went right along with the partisan crowd.”
With several Supreme Court vacancies looming, the judges issue is certain to be a big one in the upcoming presidential and Senate elections. If the 2002 and 2004 elections are any indication, it will be a winning issue for Republicans, because a solid majority of Americans oppose judicial activism generally and the specific activist Supreme Court decisions cited by McCain today.
“Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election.”
McCain explained the inherently anti-democratic nature of judicial activism, which explains its appeal to the liberal intellectual elite. The large numbers of “bitter” Americans who embrace religion, guns, and the like makes it impossible for the liberal elite to enact their policy agenda democratically. Instead, they depend on the courts to enact their agenda and that’s why they are so fierce in demanding that Democratic senators apply an ideological litmus test.
“Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige.”
“[B]y Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.”
Republicans, on the other hand, have never believed in applying an ideological litmus test to judicial nominees.
“[W]hen President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.”
McCain called out Senate Democrats on the real motive behind their personal attacks on the President Bush’s judicial nominees.
“We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered … We have seen disagreements redefined as disqualifications … Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution.”
McCain also called out Senate Democrats on their excuses for not holding hearings for judicial nominees.
“As my friend and colleague Senator Tom Coburn of Oklahoma points out, somehow these very same senators can always find time to process earmark spending projects. But months go by, years even, and they can't get around to voting on judicial nominations -- to meeting a basic Senate duty under our Constitution. … But when a judicial nominee arrives to the Senate … then he or she had better settle in, because the Senate majority has other business and other priorities.”
McCain pointed out that Senate Democrats are putting ideology above the needs of the people living in 4th Circuit states, who face diminished access to justice due to the vacancy crisis on that circuit.
“[A]t this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina. Because there are so many cases with no judges to hear them, a 'judicial emergency' has been declared here by the Administrative Office of U.S. Courts. And a third of the entire Fourth Circuit Court of Appeals is vacant. But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.”
The increasingly partisan and contentious nature of judicial confirmations is a direct result of the judicial activism that has turned the federal courts into ideological battlegrounds.
“The sum effect of these capricious rulings has been … to turn Senate confirmation hearings into a gauntlet of abuse.”
“The surest way to restore fairness to the confirmation process is to restore humility to the federal courts.”
McCain promised that, under his presidency, there will no more Souters or other disasters resulting from the temptation to pick stealth nominees.
“[I]n the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough. I will not seek the confidence of the American people in my nominees until my own confidence is complete – until I am certain of my nominee's ability, wisdom, and demonstrated fidelity to the Constitution. I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.”
Given that property rights have become unfashionable in recent decades, we’re happy to see that McCain has not lost sight of their importance.
“There is hardly a clearer principle in all the Constitution than the right of private property.”