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.More -- including an earlier address by McCain about judicial appointments -- from Ed Whelan.
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.
I don't want to read too much into this, but it certainly could be read as code words for upholding McCain-Feingold.
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.
Go figure.
"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]."
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.
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.
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.
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.
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.
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.
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...
I wish I could share your faith in Senate Democrats.
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?
Well, no. McCain doesn't fight with Democrats. He fights with Republicans.
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?
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.
We wouldn't want anyone overturning long-established precedent, like, say, returning to pre-1937 Commerce Clause jurisprudence, now would we?
Herbison obviously has an anti-McCain axe to grind -- It is hard to take any of his statements very seriously.