May 7, 2008
McCain Sings Same Old GOP Song On Justices
Andrew Cohen: Republican Presidential Nominee Parrots Party Lines Bashing Judges
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Timeline McCain's Quest Mileposts in the Arizona senator's race for the GOP nomination and the presidency.
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Blog Court Watch CBSNews.com Legal Analyst Andrew Cohen's new blog on the big issues and analyzes important cases of the day.
In a campaign speech Tuesday outlining his judicial philosophy, presumptive Republican presidential nominee John McCain offered his supporters - and/or the conservative wing of his party - only more of the same tired and empty rhetoric that has come over the past few decades to mark the mindless partisanship over the appointment of federal judges. It was as though he had been given a list of misguided clichés about the judiciary and its role in constitutional theory and dared by his handlers to read them all in a single speech on a single stump.
Did McCain repeat the Shibboleth about “activist judges” and how they are ruining the meaning of the law? You bet he did. Of “activist lawyers and activist judges” McCain said: “They want to be spared the inconvenience of campaigns, elections, legislative votes and all of that. They don't seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned.”
I wonder if the Arizona senator and his speech writers know that the late, great conservative polestar, Chief Justice William H. Rehnquist, and perhaps the most popular Supreme Court Justice of all time, Republican-nominee Sandra Day O’Connor, both expressed disdain for the threat of the “activist judge” charge. After all, a judge acts anytime he or she does or does not make a ruling, whether the ultimate result is considered “liberal” or “conservative” or something in between. So-called “judicial activism” occurs, in other words, when it’s your side that lost the case and it is nothing short of a blood libel against judges to accuse them of operating by fiat.
Did McCain tell the crowd that judges are the true bad actors in the tripartite system of federal branches? You bet he did. He said: “...For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the Framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people.”
I wonder if McCain and his speech writers understand that the judicial branch was never designed to simply rubber-stamp “the will of the people” but rather to act as a brake upon the tyrannies of majority rule in a democratic system of governance. The Bill of Rights, to use just the best known example, is a list of protections designed to protect unpopular minorities from the excesses of majority rule - and who was to help protect these folks? The judiciary, of course, the only unelected (and thus, presumably, unaffected by popular whim) branch. The Framers knew that judges were going to be anti-majoritarian at times but that was the whole point of including life-tenure as part of the deal in Article III of the Constitution.
In pressuring Democrats to relent and allow President Bush to fill the federal bench with more conservative judges, did McCain actually cite with favor the words of Sen. Tom Coburn, R-Okla., one of the least impressive (and, some say, most disturbing) senators in modern history? You bet he did. I wonder if McCain and his speech writers know that Sen. Coburn’s most important contribution to the debate over judicial nomination process heretofore was the fact that he got caught doing a crossword puzzle from his perch during the confirmation hearing for Chief Justice John G. Roberts Jr.
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It is obvious why, in an election year, a Republican candidate who has often hailed himself a “moderate” would deliver such a red-meat conservative speech. It’s less obvious, however, just how hypocritical are McCain’s criticisms of the current federal bench. For example, it was John McCain, just after the 2006 midterm elections, who crafted and negotiated a hideous piece of legislation called the Military Commissions Act, a law that forced the Supreme Court - for the third time - to interject itself into the controversy over the rights of detainees at Guantanamo Bay, Cuba. So whose fault is it that the Court now has to “act” to resolve the matter.So-called “judicial activism” occurs, in other words, when it’s your side that lost the case and it is nothing short of a blood libel against judges to accuse them of operating by fiat.
There is a single line from McCain’s speech which rightly recognizes legislative complicity in the problem. “Politicians,” McCain said, “sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them.” The only false word in there is “sometimes.” And yet where did McCain go from this moment of candor? Right back to bashing judges. “One abuse of judicial authority inspires more,” he said. “One act of raw judicial power invites others.” This is nonsense, of course, an affront to the thousands of men and women, liberals and conservatives alike, who run the courts. But it’s what passes for discourse on the campaign trail.
I point out the vast gulf here between fiction and reality only so that I may remind you, in October, when McCain tacks back toward the center of the political spectrum, that he presumably believed these things back in May. At that time, he should be asked by voters and reporters alike which view of the judiciary he truly holds - the spring version, in which judges systematically abuse their power as part of some grand liberal conspiracy, or the fall version, in which politicians and the judiciary should all sing "Kumbaya" together. You know what he’ll say then. And thanks to this speech you already know what he means.
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See all 115 Commentswhat a load of hogwash,
you are quite obviously just one more member of the
republicon noise machine, as is McBushCain,
Lie, Cheat, and Steal to get what you want, you are
Un American
This issue alone is reason to elect John McCain. Without Scalia, Thomas, Roberts, Alito, and sometimes Kennedy, this country would be headed down the toilet.
This issue alone is reason to elect John McCain. Without Scalia, Thomas, Roberts, Alito, and sometimes Kennedy, this country would be headed down the toilet.
if you are happy about your life after the last four years
than by all means, vote for gramppy McSame
The supreme court is suppose to make sure the other 2 government branches do not go "out of bounds" as defined by the Constitution, not continually move the boundaries based on the current social whims. If the legislative and Executive branches cannot agree enough to make certain changes it is an indication that consensus in the citizens have not been reached. Why should the court create law when no consensus exists?
The same people in these posts that claim the court must "keep up with the times" of social policy are the first ones to scream about being in a fascist state if a court ruling goes differently than their own personal views.
Constituional law and Supreme Court decisions are a process that is dynamic and flexible. Any politician that declares that the Constitution should stand as written does not understand the process and the spirit of the Constitution.
The Founding Fathers themselves would not agree today with many of the things they wrote in the unamended document.
That all sounds pretty impressive to me and certainly not disturbing. You are obviously very liberally slanted and biased.
Patrick Guinn
Oklahoma
Thank goodness I can count on good ol'' CBS for an unbiased story LOL You guys are incredible.
Has a little, Christian brain
Vote for him, you''ll get the same
The same the same the same the same
One purpose of the Supreme Court IS to override thre "will of the people". That is SUPPOSED to happen when the "will" of the majority infringes on the rights of the minority.
CORRECT! The Constitution DOESN''T say anything about abortion. PRECISELY!
Which is WHY the Court should protect that right of the minority against the "will of the people" (the MAJORITY in this case).
Posted by sparks224 at 12:11 AM : May 08, 2008"
Or Diebold ?
Nation, the more I learn about John McCain, the more I love his maverick spirit. For example, his critics say he%u2019s too old. So what does McCain do? He keeps aging. The politically expedient thing would be to grow younger. Uh uh. McCain clearly doesn%u2019t care what the polls say. But there was one recent NBC/Wall Street Journal poll that he should pay attention to. If found that 32% of Americans consider Barack Obama%u2019s connection to Rev. Wright a major concern. But 43% are concerned about John McCain%u2019s connection to George Bush. In other words, the biggest political albatross heading into November is George Bush. That%u2026that is a shame. Especially considering everything President Bush has done to ensure the extinction of albatrosses.
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Posted by joe1022joe at 07:19 AM : May 08, 2008
+ report abuse
Why haven''t people like you decided to stay OUT of other people''s lives? IF a woman does or does not have a child should be HER choice NOT yours. This is all coming to an end for you freaks... I know it''s hard on you, knowing YOU will not control others, but it''s over. Already Medical advancements is making Abortion a thing of the past, as we know it. You are being left in the dust of time and all you have to show for it?? Some low life JERK, hiding in a public bathroom stall, HOPING to find a like minded MAN!! Great page of history for you Nazi''s... really GREAT!! Now let Pat and the rest of the Religious Nazi''s hear ya!! Sieg Heil and AMEN!!
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Posted by kesac4650 at 06:09 AM : May 08, 2008
+ report abuse
ANYONE who says that WE today, apply the SAME meaning to words that were applied in 1776 is simply looking for a way AROUND the Constitution. That''s just the truth and fact. Over the years the freedoms contained in that Constitution have been expanded by WE the PEOPLE in many ways... Putting Judges on the Bench who will apply the words of that Constitution to ALL people and ALL views is one of them. Now let''s all pay our respects to the Nazi Judges who still think Women should NOT vote! SIEG HEIL MEIN FUHRER!!
You are a good example why McCain will win by a landslide over your Messiah in the fall.
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Posted by hillaryin012 at 07:49 AM : May 08, 2008
+ report abuse
ROFLMAO Right! Say I have some land to sell ya! It''s a little on the wet side but I''m sure someone with a brain like yours will find some good use for it!! ROFLMAO McSame has had a free ride to this point... that ride is OVER and he will HAVE to defend the WORST RECORD in US HISTORY when it comes to governing.... he can''t stop flip flopping as it is NOW so how he defends that record is going to be very interesting. Sieg Heil Bush
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