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McCain on Judges:
Although he spoke on the topic only very briefly, Senator McCain's talk at CPAC hinted that a President McCain would make belief in judicial restraint a priority for his judicial appointments:
  [Clinton and Obama] will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives.
  I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.
More -- including an earlier address by McCain about judicial appointments -- from Ed Whelan.
FantasiaWHT:
Yeah, he can say that, but how well does that square with his actions as a senator in confirmation of Bush appointees?
2.8.2008 4:20pm
Mr. Liberal:
This statement is perfectly consistent with his nomination of judges who will uphold McCain-Feingold.
2.8.2008 4:23pm
PJens:
The senate confirms judges, and A McCain president I think will have a very hard time getting any judge confirmed. Too much political history from the ole days.
2.8.2008 4:25pm
rarango (mail):
PJens is on to something: McCain has not, to my understanding, endeared himself to many of his Senate colleagues--I do suspect senators from both sides of the aisle will be engaged in payback. I suppose the gang of 14 might step in, but the gang of 86 will be repaid.
2.8.2008 4:29pm
SteveDK:
He says "character and quality" of Roberts and Alito. Nothing about their politics or ideology. He believes judges "sole[!] responsibility" is "the enforcement of laws" made by politicians, and wants ones who will respect the "values" of the people. This doesn't seem to leave too much room for overturning laws. There's restraint and then there's not doing your Constitutional duty. How does McCain view the difference?

I don't want to read too much into this, but it certainly could be read as code words for upholding McCain-Feingold.
2.8.2008 4:33pm
bittern (mail):

I intend to nominate judges [who take as] their sole responsibility the enforcement of laws made by the people's elected representatives.

Seems to give the ol' Constitution fairly short shrift. All power to the legislature! But hey, maybe he's just pandering to his immediate audience.
2.8.2008 4:57pm
PLR:
Roberts and Alito seem to have become icons with blinding speed, despite not having written any opinions that are particularly memorable.

Go figure.
2.8.2008 5:16pm
JohnO (mail):
Whoa. Mr. Liberal and bittern are right. The quoted material seems fairly inconsistent with Marbury v. Madison. Why couldn't he have said:

"I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives[, subject to the important, but fairly limited, provisions of the United States Conastitution]."
2.8.2008 5:32pm
titus32:
Roberts and Alito seem to have become icons with blinding speed, despite not having written any opinions that are particularly memorable.
One way to interpret McCain's statement is an implicit response to the story going around that he stated he would not nominate a justice like Alito--this has really bothered some conservatives. Either way, I don't think this statement reflects a belief that Alito and Roberts are "icons." And, given McCain's apparent judicial philosophy, his model justice would not tend to write memorable opinions anyway.
2.8.2008 5:32pm
EIDE_Interface (mail):
Roberts is an icon for his opinion on the Seattle public schools racial quotas. He simply said "we get beyond race by getting beyond race". Simple, effective and too much common sense. He's a hero in my eyes just for that.
2.8.2008 5:51pm
Trevor Morrison (mail):
"[Clinton and Obama] will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives."

McCain -- and for that matter Ed Whelan -- is here just repeating the silly old saw that judicial activism is somehow the special province of judicial liberals. But of course that's ridiculous. See, e.g., Lopez; Morrison; Raich; the Seattle/Louisville cases; the Michigan affirmative action cases; McCain/Feingold; Kelo; Kimel; Garrett; etc.

Of course there are plenty of cases of liberal judicial activism too, but the notion that countermanding the popular will (as expressed through the votes of our elected representatives) is the special province of liberal justices is laughably wrong.

Either McCain knows this or he doesn't. If he does, he's being intentionally misleading. If he does not, he's too ignorant to be listened to.
2.8.2008 6:02pm
Kazinski:
rarango,

McCain has not, to my understanding, endeared himself to many of his Senate colleagues

I think you may be wrong about that you look at the endorsements McCain has racked up in the Senate, as well as his friendships with Kennedy and Kerry on the other side of the aisle. I think it is pretty apparent that McCain has not burnt many bridges in the Senate, even among political opponents.
2.8.2008 6:15pm
Guest101:

Whoa. Mr. Liberal and bittern are right. The quoted material seems fairly inconsistent with Marbury v. Madison.


Or it could say nothing at all. The Constitution, after all, is a "law[] made by the people's elected representatives," and so striking down Congressional statutes as unconstitutional is simply the application of the Supremacy Clause. The meaning of McCain's statement, like much in politics and constitutional law, is almost entirely a matter of interpretation.
2.8.2008 6:36pm
Cornellian (mail):
"[Clinton and Obama] will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives."

Well technically, if the American people elected a President and a Senate precisely with the goal of appointing such judges, then that would be achieving political change through the election of representatives. Anyway, I agree with the earlier commenter that going to the courts to overturn the decisions of legislatures is hardly the special province of liberals. Everyone does it when it's in their interest to do so but it's mostly certain Republicans who vent a lot of hypocritical rhetoric about "activist" federal judges during breaks between activities such as In re Terry Schiavo, Bush v Gore, Class Action Fairness Act (guess those "arrogant" federal judges aren't so bad after all), Gonzales v Oregon etc., the list goes on and on.
2.8.2008 6:49pm
John Herbison (mail):
The quoted language does indeed appear to be McCainspeak for using McCain-Feingold as a litmus test. In that the tenor of this blog seems to be property rights über alles, don't forget that Kelo also upheld (state) legislative action.
2.8.2008 7:22pm
Dilan Esper (mail) (www):
My suspicion is that all this talk of judges is irrelevant. If Democrats control the Senate, which they are likely to no matter who controls the presidency, no Robertses and Alitos are going to get through.
2.8.2008 8:27pm
Tim Dowling (mail):
Every time there’s a post on VC about McCain and judges, certain commenters complain he will pick liberal judges to uphold McCain-Feingold. But over at Salon.com, liberals are complaining his judges will be too conservative and strike down global warming laws. I’m sure there are similar examples of conservatives and liberals attacking McCain in ways that are diametrically opposed.

It reminds me of an observation by Chesterton about the man who was described as too tall by some and too short by others, or too fat and too lean. Maybe that means he’s the right shape.
2.8.2008 11:17pm
Thoughtful (mail):
I'm not sure DIlan's logic holds. It depends strongly on who the first Justice out is. Say it's Stevens. Then you're one liberal Justice down. Let's assume a Republican President then nominates some radical "Constitution in Exile" type, like Epstein. The Senate balks. Biden waves his book around hysterically...

Can't the President simply wait them out? Can't he say, "Look, now you're one down. For all I care we can have 8 Justices make decisions on the court for the next four years, as long as five of them vote in a generally conservative way. You don't accept Epstein, you're getting Randy Barnett next."... Or something along those lines...
2.8.2008 11:32pm
Cornellian (mail):
The "wait them out" strategy only works if you're in your first time and confident about winning re-election. If you leave the position vacant, then lose your re-election bid, the other party gets to fill that vacancy and your base will be very, very unhappy with you.
2.8.2008 11:43pm
MarkField (mail):

My suspicion is that all this talk of judges is irrelevant. If Democrats control the Senate, which they are likely to no matter who controls the presidency, no Robertses and Alitos are going to get through.


I wish I could share your faith in Senate Democrats.
2.9.2008 12:17am
John Herbison (mail):

"I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives . . ."



"I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench."


Senator McCain apparently believes that Marbury v. Madison was wrongly decided. He has called for the reversal of Roe v. Wade--no surprise there, given the Republican obsession with who sticks what into whom and (in the case of vaginal intercourse) the sometime result thereof.

How many other judicial decisions wherein the Supreme Court has found legislative enactments to conflict with constitutional guaranties would Senator McCain jettison? Griswold v. Connecticut? Loving v. Virginia? Brown v. Board of Education? Reynolds v. Sims?
2.9.2008 12:25am
Flash Gordon (mail):
Even if McCain keeps his word and appoints justices like Alito and Roberts, if the Senate is controlled by Democrats none of them will get confirmed. So when the Dem Senators filibuster and obstruct will McCain go to bat for his appointees and fight the Democrats?

Well, no. McCain doesn't fight with Democrats. He fights with Republicans.
2.9.2008 12:58am
justwonderingby:
Orin,

You're s smart guy - why do you believe McCain? What -- at all -- has he done to make any of us believe that he'll appoint conservatives to the Court? And since he wants to be liked by the media, do you think he could stand the onslaught of criticism if he even tried?

You know, this is the frequent call by the GOP lately: "vote for our guy even if you don't like him because it's better than a democrat." I find that argument offensive, because essentially what the GOP is saying is "you'll like what we give you now shut up and take it."

Didn't the GOP learn ANYTHING from the midterm elections?
2.9.2008 1:43pm
Oren:
<blockquote> Can't the President simply wait them out? Can't he say, "Look, now you're one down. For all I care we can have 8 Justices make decisions on the court for the next four years, as long as five of them vote in a generally conservative way. You don't accept Epstein, you're getting Randy Barnett next."... Or something along those lines...</blockquote> A 4-4 court cannot reverse so if the CA went for the 'liberal' side, Kennedy is still the swing vote just like the current court but with the dysfunctional PR image of a indecisive system. It's really not a situation a president wants to be seen as responsible for.
2.9.2008 1:45pm
Laura S.:
The irony of getting Epstein or Barnett on the court is neither is strictly in the D or R mold. I'd expect either one to be considerably more opposed to broad Police powers and loose criminal procedure requirements than Rehnquist or Alito. Conversely I'd expect them to be considerably more stringent in their application of the commerce clause.

This strikes me as suggesting they are compromise candidates. Note: this is quite different from being 'moderate' as both would be a 'radical' influence one existing jurisprudence.

Roberts was definitely a moderate in this regard. I'm shocked though at the propensity for people to presume that this is the same as him being a compromise candidate--he may well be but only time will tell.
2.9.2008 4:01pm
Gordo:
Ah yes, Judicial Restraint, all holy and eternal.

We wouldn't want anyone overturning long-established precedent, like, say, returning to pre-1937 Commerce Clause jurisprudence, now would we?
2.10.2008 2:18am
SFBurke (mail):
It seems like people are reading way too much into a very short section of political speech. As far as I can tell all McCain was saying was that he supports "judicial restraint" (as opposed to the "judicial activism" that CPAC hates) and he like Roberts and Alito. I don't see any basis for reading in a McCain-Feingold litmus test.

Herbison obviously has an anti-McCain axe to grind -- It is hard to take any of his statements very seriously.
2.12.2008 12:48am