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.
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