Republican presidential nominee John McCain’s speech on judges
on Tuesday was a mostly successful effort in his continuing attempt
to rebuild bridges with conservatives justifiably angry at him
about both issues and attitudes, not to mention anger, in his past.
A tough grader, conservative to the core but also a political
realist, would have to give the speech a solid B+.
The high points were considerable in both quantity and quality
— and we will get to them in a moment. The disappointments are
almost at the level of nitpicking, but considering McCain’s spotty
history on the subject, they should be explored first before
considering the numerous and substantive encouraging parts of the
speech.
What inspires just a bit of doubt is indeed that spotty history.
It’s not just the Gang of 14 deal, in which McCain was more
responsible than anybody for maintaining a “right” to filibuster
that Republicans will likely never use, in order to confirm judges
who probably would have been confirmed anyway, to the effect that a
smaller percentage of judicial nominees were confirmed by a
55-GOP-member Senate than had been confirmed in the previous
51-GOP-member Senate. And it’s not just that McCain played wingman
for Sen. Lindsey Graham’s sleazy character assassination of superb
Fourth Circuit Court of Appeals nominee Jim Haynes, the longtime
Pentagon chief counsel. It’s also that McCain has never used once
his considerable public stature to shame Democratic cheap-shot
artists out of their unprecedented and utterly unjust efforts to
slime a whole series of qualified, judicious nominees.
Meanwhile, again and again he has shown a disregard for the
strict requirement of constitutional language that gets in the way
of his favored policies. His treatment last fall of Rudy Giuliani
for Giuliani’s wholly justified challenge to a badly designed
line-item veto was a contemptible case in point: In the debate
exchange in question, McCain showed not the barest hint of concern
for the constitutional point Giuliani rightly made.
IN THAT LIGHT, I personally was hoping for something in his speech
to evince an understanding that a good judge should be deferential
not primarily to the elected branches, but to the
Constitution. The line between judicial “activism” and due
deference is not determined by whether one always lets
elected branches get their way, but rather by whether a judge will
defer to the clear language of the Constitution regardless of
whether that means affirming legislative or executive action or
overturning it. Sometimes a judge is being activist by
refusing to overturn a congressional action despite a lack
of constitutional authority for that action, merely because the
judge happens to agree with the policy Congress has enacted. Does
McCain understand that?
Two specific lines in the speech were stinkers. “The surest way
to restore fairness to the confirmation process,” he said, “is to
restore humility to the federal courts.” Come again? In truth, the
confirmation process is broken specifically because too many
senators refuse to confirm judges of the right humility. The
confirmation process will not be fixed until humility is restored
to the Senate — and it was to protect the overweening
vanity of the Senate that McCain and company cobbled together the
despicable Gang of 14.
Also, his last line was terrible: “We must have confidence again
that no rule applies except the rule of law, and that no interest
is served except the interest of justice.” Wrong. The very problem
is that too many judges want to ensure that “no interest is served
except the interest of justice.” The problem is that what one man
considers justice is often in conflict with the law, and that too
many judges want to put their ideas of justice above the law’s
dictates. But Oliver Wendell Holmes was right to upbraid a friend
who urged him to “do justice.” His answer: “That is not my job,
sir. My job is to apply the law.” It is indeed for the elected
branches, or even more powerfully for the people through the
Constitution they ratified, to decide what justice is, and for the
courts to subjugate themselves to those judgments.
Finally, while McCain did a good thing in tweaking the Democrats
for their deliberate dereliction of duty in letting the Fourth
Circuit Court of Appeals operate at only two-thirds capacity, he
merely tweaked them when he should have pounded them. He was in
North Carolina, for goodness sake; he should have taken the
opportunity, but didn’t, to make a specific case, by name, for
North Carolina nominee Robert Conrad, and to raise both heat and
light on that particular nomination as only the national party
standard-bearer can do.
BUT ENOUGH BELLYACHING. Those criticisms pale in comparison to what
McCain said that was right on target. “A suspicion of power is
ingrained in both the letter and spirit of the American
Constitution.” And: “I will bring…care and caution to my judicial
nominations….A hunch, a hope, and a good first impression are not
enough.” And: “It is part of the discipline of democracy to respect
the roles and responsibilities of each branch of government.” And,
of tremendous import: “There is hardly a clearer principle in all
the Constitution than the right of private property.” On that last
point, McCain elaborated with an admirably pointed criticism of the
infamous Kelo v. New London decision that allowed of an
individual’s private property to be confiscated not for “public
use” but for a private developer.
McCain beautifully blasted past Supreme Court decisions that
cited “international law, the constitutions of other nations, the
meaning of life, and ‘evolving standards of decency.’” He ridiculed
the notion that the court can enforce constitutional “penumbras”
and “emanations” and “other airy constructs the Court has employed
over the years as poor substitutes for clear and rigorous
constitutional reasoning.” And he rightly ripped Barack Obama for
preaching bipartisanship while refusing, on bizarrely skimpy and,
yes, “airy” grounds, to vote for confirmation of even so obviously
qualified a nominee as Chief Justice John Roberts.
Indeed, McCain did quite well in eviscerating the obstructionist
tactics of Senate Democrats who “turn Senate confirmation hearings
into a gauntlet of abuse.” He bemoaned “the shabby treatment
accorded to nominees” (Lindsey Graham, look in the mirror!) and
“the caricature and code words shouted or whispered, the
twenty-minute questions and two-minute answers.” (That means you,
Senators Schumer and Biden.)
McCain made a real effort to surround his good and thoughtful
speech with testimonials from solid conservatives like Fred
Thompson, Sen. Sam Brownback, and former Solicitor General Ted
Olson. He also named a superb list of people to his new “Justice
Advisory Committee,” to be co-chaired by Olson and Brownback — a
list that includes, among too many conservative legal heavyweights
to name them all, Federalist Society founder Steven Calabresi,
former Sen. Daniel Coats, former court nominee Miguel Estrada,
former Oklahoma Gov. Frank Keating, and respected law professors
Eugene Volokh, Ronald Rotunda, and Robert George.
ALL IN ALL, then, McCain did almost as much as any one speech could
do to reassure conservatives without saying anything that should
scare off moderates or independents. It is clearly the case,
however, that judicial issues are not McCain’s primary bailiwick,
so it will be incumbent on all his new advisors to hold his
attention to the subject — and for McCain to let them do so even
when he isn’t inclined to fully care.
McCain may not be a legal conservative’s absolutely ideal
candidate. But on the issue of judicial appointments alone, he is
so much better than either Obama or Hillary Clinton that it is
reason enough for conservatives to rally to his side.
