McCain Sings Same Old GOP Song On Justices

Andrew Cohen: Republican Presidential Nominee Parrots Party Lines Bashing Judges

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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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.

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.

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.

[afmca]

This locks my anyone but a Republican vote. When it comes to activism from the court, this Supreme Court is truly in the extreme. Not in defending democracy but in tearing it out at the roots. Third world petty dictators would love to have this current court. Matter of fact most Republicans would like to do away with both Congress and the Supreme Court and annoint the Bush clan as God''s chosen leaders for a Christian America. King George the Idiot followed by Prince Jeb - what a ghastly thought!

[pierson98]

Well, you guys have the right to be critical of McCain or of conservatives. But the fact is, I oppose the war, I think Bush is a poor President, and I will still vote for McCain ... and it''s entirely becuase of his commitment to appointing conservative justices. And there are millions more like me.

The damage done to our nation by activist judges, who claim the right to ''interpret'' the Constitution far beyond anything resembling its meaning, is serious and far-reaching. Roe v. Wade, affirmative action, property being taken away on specious ''environmental'' grounds - these are all things that millions of Americans hate, even when they can''t agree on much else. The media doesn''t like the fact that these court decisions are resented by the common man, but the fact is, they are. And that''s what drives a lot of Republican voting.

You can complain about it all you want, you have the right to hold your opinion. But after November''s election, don''t get angry if the Republicans win. They are listening to the voters (on THIS issue, at least) and giving them what they want, while Democrats are telling the voters what they SHOULD want.

[Syndicate]

This is all you got?

[clestes-2009]

Considering the mood of the country where 75 to 80% say we are on the wrong road and the backlash from the problems the ultra right has caused, I cannot see the dino Mac has much chance of being in a position to appoint anyone.

Everytime he opens his mouth he comes out with something that only goes to show that he is as out of touch with Americans and shrub has ever been!

The majority of Americans DO NOT want a bunch of conservative right wingers as judges who support big business and care nothing for today''s problems.

McCains answer to the overwhelming problems of the Afghan and Iraq wars is to suggest we need to be there another 100 years, and oh yeah, lets compound the problem with bombing Iran.

What a complete moron he is!

[oscarez]

The USA has two class of people. The Republican ruling class and the tax paying working class. McCain is just pointing out that we, the working class, need the ruling class to do all our thinking (just shut up and pay your taxes). I don''t believe that John McCain really expects to be president.

[j-whitman]

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

"MORE OF THE SAME"

[fairandbal]

McBush only has to keep his base: the press to win. They are more than happy to help prop him up and slam any Dem candidate as we''ve seen.

Chris Mathews: "The press loves John McCain. We''re his base!"

[Syndicate]

I''ve done very well these last seven and a half years. I wouldn''t mind a hundred years of this.

[jon2012-2009]

I''ve already decided the past few years that Republicans would never receive my vote in any election for the White House or Congress. These people have no commitment to respect truth or reason. It''s all about winning for their narrow points of view and special interests, nothing at all about the greater good of society. They are a political creature that represents a clear and present danger to the Republic.

[sistatee-2009]

Pterodactyles can sing?

[frankson2]

T GOP has certainly become the grand OLD party. Maybe he''ll get the grandpa vote.

[oleander8]

Man, he wants to win BAD, doesn''t he? I had a lot more respect for him when he was running against Geo.Bush -- now he is one.

[flreason]

There needs to be an amendment to the Constitution that will allow impeachment of Supreme Court justices. This partisan court has shown the error of entrusting a group of judges with lifetime power over the American judicial system. There needs to be accountability. Then Repub/Neocons have no respect for the judicial system, except as a tool for maintaining power to their advantage.

[element51]

riteaidbob...................

LIBERALISM: Characterized by generosity or lavishness in giving; abundant; ample; inclining toward opinions or policies that favor progress or reform, such as politics or religion.
SOURCE: Webster''s Dictionary Deluxe Edition

Just so you can get it straight.

[mbcsmith]

There needs to be an amendment to the Constitution that will allow impeachment of Supreme Court justices. This partisan court has shown the error of entrusting a group of judges with lifetime power over the American judicial system. There needs to be accountability. Then Repub/Neocons have no respect for the judicial system, except as a tool for maintaining power to their advantage.


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Posted by flreason at 01:35 PM : May 07, 2008

Typical LIB.

[mbcsmith]

Liberal biased opinion reporting at it''''s finest.


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Posted by riteaidbob at 01:21 PM : May 07, 2008


"Reporting"? This is just out and out propaganda. The press is just another arm of the Dean fascists also known as the DNC. EEEEEEYYYAAAAAAAAAAAAAAA!

[fibonacci_]

LIBERALISM IS A MENTAL DISORDER!!!!!!!!!!!

Posted by riteaidbob

And conservatism is a large stick up the ***. And you know it, little Christian brain.

[Gary Kempf]

Element51
Excellant!!!

[ianlou]

LIBERALISM: Characterized by generosity or lavishness in giving; abundant; ample; inclining toward opinions or policies that favor progress or reform, such as politics or religion.
SOURCE: Webster''''s Dictionary Deluxe Edition
Posted by Element51

CONSERVATISM: Characterized by greed and selfishness; inclining toward opinions or policies that favor the status quo that maintains (conserves) or increases wealth for the "Have''s" while maintaining no more than a subsistence income level for the have-not''s.

A CONSERVATIVE: The Rich and greedy, The Morally Superior, the Ignorant.

[ioweign]

There needs to be an amendment to the Constitution that will allow impeachment of Supreme Court justices. This partisan court has shown the error of entrusting a group of judges with lifetime power over the American judicial system. There needs to be accountability. Then Repub/Neocons have no respect for the judicial system, except as a tool for maintaining power to their advantage.

Posted by flreason at 01:35 PM : May 07, 2008

There is - judges and other government officials can be impeached...

[shadyguy4]

I wonder sometimes if ol John is getting a little senile?

[newz4i]

%u201Cactivist judges%u201D elected Bush.

[mudrose-2009]

Obviously the left never gets it that the Courts are not to be used as a tool to set social policy which deprives the people of their voice. You keep saying it John until it sinks in.

[mudrose-2009]

There needs to be an amendment to the Constitution that will allow impeachment of Supreme Court justices. This partisan court has shown the error of entrusting a group of judges with lifetime power over the American judicial system. There needs to be accountability. Then Repub/Neocons have no respect for the judicial system, except as a tool for maintaining power to their advantage.

Posted by flreason at 01:35 PM : May 07, 2008

There is - judges and other government officials can be impeached...

Posted by IOWEIGN

And Congress has the authority to overturn a ruling as well through the legislative process.

[mcvet]

Obviously the left never gets it that the Courts are not to be used as a tool to set social policy which deprives the people of their voice. You keep saying it John until it sinks in.


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Posted by mudrose at 02:21 PM : May 07, 2008
+ report abuse

Yeah John you just keep singing the SAME tired old line''s of the Fascist... I LOVE it! I can''t see ANY difference between McSame and What we have. So everyone vote for McSame and we can continue the WORST in our HISTORY for another 4 years!! By that time we should be able to qualify for Third World Aid... Sieg Heil Bush

[jerr11]

%u201Cactivist judges%u201D elected Bush.

Posted by newz4i at 02:21 PM : May 07, 2008



You mean, "selected" Bush.

Don''t forget Ohio 04 too.

The GOP election strategy:

If you can''t beat ''em, steal ''em!

Works great!

[mcvet]

And Congress has the authority to overturn a ruling as well through the legislative process.


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Posted by mudrose at 02:22 PM : May 07, 2008
+ report abuse

Duh??? The Court is SUPPOSED to determine if Action by the Congress or any State VIOLATES the Constitution. Have you Nazi''s EVER actually READ the document... I don''t mean go through it trying to figure a way around it but READ it? The Bill of Rights, according to those who WROTE it, was established to protect the Minority from the Majority, those governing. In other words ACTIONS and DEEDS of a Government is to be inspected by the courts and a decision made as to IF the rights of the Minority has been violated by those actions and deeds. Now sing in out Bootlicker... let''s let the fuhrer know you are raising that flag today!! SIEG HEIL BUSH!!

[jeffstersf]

There are basically two kinds of people: those who live their lives in an essentially selfish manner and feel guilty about it. They%u2019re called liberals. And those who live their lives in an essentially selfish manner and are proud of it. They%u2019re called conservatives. The first may be capable, on occasion, of responding to an ideal higher than their own self-interest; the second don%u2019t even know that such things exist.

In this light, McCain is decidedly conservative. Pity.

[sleepyric]

you know,,,i read these comments, and wonder,,,don''t people know that there is a "middle",,,neither left or right?? I mean, so much name calling and labeling...not condusive to progress in any direction..and now, I will prepare to take my beating..but you know, I am logging off so save your smart *** remarks...have a good evening.

[jerr11]

The lefties will take anything and everything they can get, even if that means fascism through the courts.

Posted by corey2444 at 02:31 PM : May 07, 2008



And the righties will continue their war of profiteering and looting of the treasury.



If you think we''re in trouble, wait till McCain get into office.

Some projections:

10,000 Dead troops in Iraq.

$6,000,000,000,000 squandered in Iraq.

Gas at $10 a gallon.

As Reagan said, "You ain''t seen nothin'' yet!"

[jerr11]

Give me activist judges or give me an endless war that''s bankrupting us.


I''ll take activist judges anytime!

[antoniof123]

The lefties will take anything and everything they can get, even if that means fascism through the courts.

Posted by corey2444 at 02:31 PM : May 07, 2008

I have to ask you family value party of god right wing nuts did you ever finish the thrid grade. Fascism is right wing reactionary of course because you can''t think for yourself you lable it liberal. Once again the storm is coming and we know that you right wing nuts talk big but you are frightened an dwell you should be.

Blood bath in November in the Senate.

[j-whitman]

tiddsanbeer,,, Cohen is a Jewish name

[jerr11]

Cohen the "no-jew" is just a bush hater and writes these pieces just to satisfy other bush haters typical for this board.

Posted by tiddsanbeer at 02:40 PM : May 07, 2008




I don''t hate Bush. I just hate the things he''s done.

Dragged us through the mud!

Killed thousands and maimed thousands more of our best!

Squandered our money in a war to profit his cronies.

And bankrupted us in the process.

Guess why we''re paying $4 a gallon folks!

No it ain''t China or increased demand.

It''s the dollar that''s lost 40 % of its value since Bush took over!

That''s what, we got 60 cents in the dollar!

He gave tax breaks to his rich buddies and took 40 cents from us for every dollar we earned!

Talk about an indirect tax hike!

Useless neocons - Borrow and Spend warmongers!

[j-whitman]

Flip-Flopping McBush --- Spends half the week distancing himself from Bush & the other half pandering to his base.

[redhoffer]

McCain is such a loser. Hopefully he keeps up this bile and he is seen for what he is. The use of the term "Activist Judge" to refer to a judge whose views correspond to those of greater than 50% of the general pop is a shame.
God help us if this monster takes the place of the last monster to rule our country. More hate, more racism, more sexism, more abuse of freedom.

[jerr11]

We''re spending $12,000,000,000 a month in Iraq.

With $12 billion, you can fund all the public colleges in CA for one year!

If that''s not squandering taxpayers money I don''t know what is!

[ajaxtheleast]

HOW MANY REPUBLICANS DOES IT TAKE TO

FILL UP A FOXHOLE ??

Hard to tell: Ten test repubs showed up

with shovels, seven came carrying a fifty-

gallon barrel of water, one came holding a

fox in position for his pal and two, discovering

the real test objective, had heart attacks.

(Test as run: It takes two dead repubs to

fill up a foxhole. But probably only one

live one needing sideways space for

the fear shakes.)

[superdem]

The right wing freaks don''t think it''s "activist" for a judge to tell a woman what she can and cannot do with her own body, they don''t think it''s "activist" for a judge to tell people who they can or cannot marry. But force a company to obey pollution laws or pay their taxes or protect their workers from hazards - OH MY GOD it''s ACTIVIST JUDGES AT IT AGAIN !!!! An unfettered, independent court system is the very bulwark of democracy, something they do NOT have - and never will - in Iraq. When your courts are toads to your political and military systems, you have fascism. Just what the right wing wants.

[fibonacci_]

Good riddance neo-con Christian brains.

[rudy2281]

There is only one group as bad as the neo con right wing nut jobs-left wing sleaze.

[element51]

sleepyric...I hope you are still on line. Actually you are right on. All this warfare between right and left is kind of silly. The reality is that those who can actually think for themselves will look at an issue, get as much information and possible, and then make a decision based on those facts. Sometimes it will be to the left, sometimes to the right or a combination of the two. The world does not exist in Black and White only. It is mostly shades of Gray. A true Patriot is one who puts the country first and is willing to speak out if he feels the counry is on the wrong track. So, in the end you seem to be a thinking, intelligent person. Wish there were more of you.

[vrnnjoseph]

I guess the right wing thinks it is okay for activist judges that give rights to corporations and takes away rights of the people. What a bunch of Nazis!!!

[jerr11]

All this warfare between right and left ...

Posted by Element51 at 03:08 PM : May 07, 2008


It''s not about right and left.

It''s about right and wrong.

Wrong to start a war based on lies and kill thousands in the process.

Wrong to bankrupt the nation by borrowing and printing money to finance your war.

[joe1022joe]

The US Constitution is difficult to change. It was designed to be difficult to change. However, it does have a mechanism allowing change. That is the amendment process. It has been used many times for important issues. Unfortunately, since the late 1940s liberal judges have been in the business of changing the US Constitution. Why? Because the vast majority of citizens didn''t want to change it. Do you and your political associates want abortion on demand, get Congress to pass a law allowing it. The problem was Congress wouldn''t. The democratic process was working, but the proponents of abortion didn''t like the result. The supporters of abortion on demand were unhappy with this. So instead of working within the constitutionally mandated process, a very thin layer of liberal judges, egged on by the kind of people who today support Obama and the feminists supporting Clinton (either Clinton) determined to circumvent the process. They decided to use what amounts to silly-logic and call it constitutional interpretation. Roe v Wade is just one example. A line of cases establishing "affirmative action" was born from this thinking. Examples of this abound. A loosely organized cabal of liberal judges and their henchmen in the feminism and civil rights industries have been rewriting the US Constitution for the last 60 years. We need Justices and judges who interpret the Constitution from the perspective of original intent. The nation will be better off.

[element51]

jerr11...I totally agree with you. While I consider myself a liberal and certainly lean that way in my philosophy on life, I like to also keep myself open to any idea that may be beneficial in helping to solve any of the many problems we face today. The two points you make are totally right on. Both were very wrong. But in order to solve anything we are going to have to work together and slinging insults at each other is not condusive to working together. I know I find it terribly offensive when the right wingers on here call me names and insult my intelligence and sometimes I give in to that anger and say things back that I should be adult enough not to say. But we all have emotions and sometimes it just gets away from us. Your post was a good one and I appreciate the chance to have a reasonable conversation with you. Thanks.

[redhoffer]

Dear joe1022joe,

Ove half of americans support abortion rights. You''ve been brainwashed to believe this is an "activist position" that "activist judges" prefer.

Pro-choice represents the majority viewpoint of the USA, you are just an acivist poster I guess.

The fact that you interpret the consitution to have been written with "original intent" against supporting rights for minorites and women speaks volumes about where you come from.

[element51]

joe1022joe....OK. So let''s go back to original intent. Let''s remove the women''s right to vote. Let''s require that only white, land owning men be allowed to vote. That sound good to you? In fact, let''s just disband the congress, appoint a supreme court of right wing conservative white men and let them have at it. Would that work for you?

[jerr11]

While I consider myself a liberal ...

Posted by Element51 at 04:17 PM : May 07, 2008


I''m actually a social conservative and vote Republican in local elections.

But the neocons who''ve hijacked the Republican party and brought the country close to ruin certainly do not share my conservative values.

Greedy borrow and spend warmongers, that''s all they are.

[oldone60]

...right wing ...What a bunch of Nazis!!!
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Right! And the left wing is a bunch of Communist thieves who think it''s OK to confiscate the money I earn (and yes, I actually do earn it) so they can shovel it over to people too stupid or lazy to get or keep a job!