Bench Memos

NRO’s home for judicial news and analysis.

Willful Abuse


Back from some northerly peregrinations that kept me from contributing here for the last week, I find a lot to catch up on.  When I figure out whether Ed Whelan and Gerry Bradley have left any stones unturned on the new gay-marriage edict from the robed masters of California, I’ll say something about that.

But meanwhile, here’s a quick and easy post.  An NRO friend, knowing my recent inclination to gaze with raised eyebrow on the works of George F.Will, sends a link to this recent Newsweek piece, in which Will asks Senator John McCain several pointed questions.  Among them is this:

You vow to nominate judges who “take as their sole responsibility the enforcement of laws made by the people’s elected representatives.” Their sole responsibility? Do you oppose judicial review that invalidates laws that pure-hearted representatives of the saintly people have enacted that happen to violate the Constitution? Does your dogmatic deference to popular sovereignty put you at odds with the first Republican president, who nobly insisted that there are some things the majority should not be permitted to do—hence his opposition to allowing popular sovereignty to determine the status of slavery in the territories? Do you also reject Justice Antonin Scalia’s belief that the Constitution’s purpose is “to embed certain rights in such a manner that future generations cannot readily take them away”? Does this explain your enthusiasm for McCain-Feingold’s restrictions on political speech, and your dismissive reference to, “quote, First Amendment rights”? Would you nominate judges who, because they think those are more than “quote … rights,” doubt McCain-Feingold’s constitutionality?

One need not hold any brief for McCain-Feingold to recognize in this paragraph a certain tendency to froth at the mouth in mad loathing for McCain.  Here is the whole relevant passage from the speech Will quotes, given to the annual CPAC meeting in February:

They [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.

This may not be the most felicitous statement of the principle McCain is trying to put across here, but does any reasonable reader of the remark in context believe that he was eschewing judicial review as such–as Will wants us to believe?  After all, at the conclusion of the same sentence Will quotes, McCain speaks of “the people whose rights” the judges “are sworn to defend.” 


It seems as plain as day that for McCain, the “laws made by the people’s representatives,” with whose “enforcement” the judges are charged as “their sole responsibility,” include the Constitution.  Has George Will forgotten how the Constitution was made?  In his more recent speech on the judiciary, a speech with which I have found some minor fault on other grounds, McCain spoke succinctly of appointing judges who “will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power.”


Would it strain George Will too much to recapitulate a candidate’s whole view in context before asking “now watch my head explode” questions? 


Sign up for free NRO e-mails today:

Subscribe to National Review