Bench Memos

NRO’s home for judicial news and analysis.

More on John McCain vs. Clinton/Obama


As my EPPC colleague Yuval Levin explains in this very interesting National Review essay, John McCain is driven to an unusual degree by his deep sense of honor, and a “man of honor does not break a promise.”  I don’t mean to argue (and I doubt that McCain himself would argue) that McCain has never broken a promise.  But there’s ample reason to believe that McCain, far more than many other politicians, takes his promises very seriously. 


Consider, for example, a defining moment of McCain’s life—his response, after months of unspeakable suffering as a POW in North Vietnam, to an offer to be released.  McCain rejected the offer because he had committed himself to a code of conduct that barred acceptance of special favors.  As a result, he endured nearly five more years of captivity.  (McCain’s own account of his captivity, first published in U.S. News & World Report in 1973, would seem to deserve more attention than Obama’s “Yes We Can” music video.)


Let’s take seriously, then—and work to help McCain fulfill—the specific promises that he has made on judicial appointments.   


Here are excerpts from McCain’s statement to the Federalist Society:


I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat….

Our laws are legitimate precisely because they reflect decisions solemnly made by the people – in the case of Constitutional law, through the process of ratification and periodic amendment; in the case of statutory law, through their elected representatives in the legislative process. When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law. The judicial role is necessarily limited and one that requires restraint and humility. As I said to the Society at the 2006 convention, “[Judges] should be people who are humbled by their role in our system, not emboldened by it. Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of arbitrary executive, or legislative, or state power.”


This is not a new position.  I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.…


I believe that shaping the judiciary through the appointment power is one of the most important and solemn responsibilities a President has, and certainly one that has a profound and lasting impact. When I was running for President in 1999, I promised that, in appointing judges, I would not only insist on persons who were faithful to the Constitution, but persons who had a record that demonstrated that fidelity. A President should have confidence in the judicial philosophy of those he is appointing to the bench. That is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees. 


And here are excerpts from his CPAC speech:


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.

Tags: Whelan


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