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