Senator McCain’s speech this morning at Wake Forest is a masterful and sustained meditation on the role of the Constitution in our democracy — and on judges’ places with regard to both. The talk repays the careful reading and re-reading which it will surely receive. I shall say more about its content on another occasion.
What about the politics of it? It seems to me that McCain needed to accomplish two political objectives with this talk. The first was to gain meaningful separation from his two Democratic opponents. This task was made easy by their votes against John Roberts and, in Obama’s case, against Sam Alito as well. This was the low-hanging fruit. Even so, much of the speech is a good and needed explanation of what the differing votes reflect about the candidates’ views on law and democracy. The money line here is probably McCain’s recitation of Obama’s grounds for opposing Roberts. Senator Obama said that a Justice should “share one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” The speaker is numero uno in this story: Roberts was unfit for the high Court because he did not “share” Obama’s “deepest values” and “perspective on how the world works.”
There is much that needs to be said about this odd and dangerous stance. Here I shall observe only that it puts Obama in a real pickle. For he must hold another and very different criterion for his own judicial nominees. It is agreement (or at least “empathy”) with the infamous Mystery Passage of Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is the mantra of liberal constitutionalism in our time. Liberal interest groups (such as NARAL and the ACLU) will insist that President Obama make it a litmus test for judicial nominees. But how could Obama coherently require judges to not only affirm that they will apply the law and faithfully interpret the Constitution, but “share” Obama’s “deepest values” as well? Would not prospective judges have a right — ‘”the heart of their liberty” – to hold “deep vales” all their own? Or is it that Obama’s “deepest value” is itself liberty so defined: every worldview is just fine; let three hundred million moral universes bloom! But, then, would he unite and not divide us?
McCain’s second political objective was to assuage social conservatives’ worries about him (remember the Gang of Fourteen?), but without the sabre-rattling which alienates independents and fence sitters. This task is intrinsically difficult, like trying to make chardonnay go with red meat. The task is also very delicate, and success at it depends upon data yet to be obtained: do social conservatives and independents buy it? Time will tell, but it seems to me that McCain’s speech is close to the mark. Sure, social conservatives would have preferred Thomas and Scalia (to Roberts and Alito) as models. But McCain described in considerable detail the standards he would use in selecting nominees, and they ought to satisfy conservatives. He made crystal clear that there will be no stealth candidates, no David Souters: a “proven record,” a “proven commitment to judicial restraint,” a “demonstrated fidelity to the Constitution” are all required. And he will present only nominees “immune to flattery and fashionable theory.” Are you listening Anthony Kennedy?
Independents? Well, they get the Gang of Fourteeen.
(Full disclosure: I am on Senator McCain’s Justice Advisory Committee, but I had no role at all in drafting or refining the speech he gave today.)