(cross-posted from Confirm Them)
Look, it is clear I am no fan of John McCain’s, especially on judges, where
I remain angry at his actions with the Gang of 14 and absolutely furious (as
we all should be) with his shameful support for Lindsey Graham’s smear job
against 4th Circuit nominee Jim Haynes. But I must admit that his speech at
CPAC, which I attended, hit almost all the right notes in exactly the right
tones. What bothered me, though — indeed, almost the only thing that
bothered me — was what he said on our favorite issue here at Confirm Them.
I acknowledge right up front that this is slightly nitpicking, but with
McCain’s record, they are nits that I think are quite legitimate to pick. So
here goes….
McCain pledged to appoint judges like Roberts and Alito. Great. I am a fan
of both. But I am even more of a fan of Scalia, and even more than that a
fan of Clarence Thomas. I would have been happier if McCain, speaking to
this conservative audience, had forthrightly said he would appoint judges
like Clarence Thomas.
Here’s another reason why: The new big movement on the judicial-commentariat
left is to equate “activism” with overturning legislation. We, of course,
know that that is a misnomer. A good conservative, non-activist judge will
enforce the CONSTITUTION and laws as written, to the letter of the law. It
is not activist, however, to overturn a law that contradicts the clear
language of the Constitution. It IS activist for a judge to substitute his
own predilections for the language of the Constitution and laws. And the
Constitution takes precedence over a statute — WHEN the Constitution’s
language is clear. It is therefore just as activist, and just as wrong, for
a judge to achieve his own policy preferences by ignoring clear language in
the COnstitution in order to uphold a statute contrary to that clear
language, as it it for him to stretch and twist the words of the
Constitution, and make up new meanings for them, in order to overturn a
statute with which he disagrees.
With regard to McCain, this is of utmost importance, because McCain has
evinced little regard, on multiple occasions, for the restrictions the
Constitution itself clearly places in the way of certain legislative
actions. For McCain, it has always seemed to me, WHATEVER the Congress
decides should be final, regardless of the letter of the COnstitution.
That is why it bothered me today, after McCain pledged fealty to Roberts and
Alito, for him to say this: that he would appoint judges who understand that
“it is their sole responsibility to enforce the laws passed by the people’s
elected representatives.”
Uh, no…. NO it is NOT. Instead, it is their sole responsibility to be
bound by the letter of whatever law is the highest applicable law at issue.
And the laws passed by the people’s reps (campaign finance, anyone???) are
NOT, repeat NOT, always the highest applicable law at issue.
This is a fundamental failing of John McCain’s. And it is another reason I
don’t trust him, not one bit, when it comes to judges.
