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Anyone who follows political and cultural news knows elections matter. John McCain drove this point home last week in his speech about the judiciary.
Speaking at Wake Forest University, the Arizona Republican senator chided judges for blurring the lines between the branches of government; for disrupting the balance our Founders wisely drew up in their constitutional blueprint for our republic.
“In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of ‘judicial activism,’ ” McCain said. But, he continued, “real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. 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, as a campaign boost, McCain couldn’t have better enemies in this battle against judicial usurpation of American democracy. Howard Dean, chairman of the Democratic National Committee, has railed against McCain’s “radical right-wing judicial philosophy.” This should be music to the McCain campaign’s ears. In fact, they should play it as a campaign song when meeting with conservatives, many who still need to be convinced they have a stake in supporting his candidacy.
As Dean hammers at McCain, he will be campaigning for a candidate with a radical left-wing judicial philosophy. McCain pointed out in his speech at Wake Forest that neither Sen. Barack Obama nor Sen. Hillary Clinton voted for Chief Justice John Roberts, a man eminently qualified to serve on the Supreme Court.
The presumptive nominee, Obama, neither understands the judiciary’s proper role nor the Senate’s obligations when it comes to the president’s Supreme Court nominees. During the Roberts confirmation hearings, the Illinois senator said that Supreme Court nominees 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.” Obama wanted both liberal activists on the Court and in the Senate to do the president’s choosing for him: He doesn’t understand the separation of powers.
Although he’s on the most radical end of the spectrum, Obama fits in well in the Senate. If you’ve watched bits and pieces of judicial-confirmation hearings over the years, you’ve seen remarkable abuses by senators — all in the name of politics. Clarence Thomas had to be publicly humiliated to get confirmed. When former Alabama attorney general William Pryor was before the Senate Judiciary Committee in 2003 for a seat on 11th U.S. Circuit Court of Appeals, he was asked how he could possible serve on the court after he and his wife decided to reschedule their family’s vacation to Disney World so it would not coincide with Gay Day there. Pryor’s parenting decisions spoke to his qualification for the court?
The Senate judicial-confirmation charade really hit its stride in 1987, when the hearings forced a new verb into our dictionaries. That was the year U.S. Appeals Court Judge Robert H. Bork, Ronald Reagan’s nominee to replace retiring Justice Lewis Powell on the Supreme Court, was “borked.” Ted Kennedy, now an enthusiastic booster of Obama, a.k.a. the next John F. Kennedy, shamefully railed that a Justice Bork would mean an America where “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”
McCain understands what a travesty of political justice these hearings have become: “Over the years, we have all seen the dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court. We’ve seen and heard the shabby treatment accorded to nominees. . . . We have seen disagreements redefined as disqualifications, and the least infraction of approved doctrine pounced upon by senators, their staffs, and their allies in the media. Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution.”
Conservatives have plenty of reasons to worry about McCain’s “maverick” instincts. One speech — particularly one that included legitimate fodder for conservatives concern — does not erase McCain’s sometimes spotty history. But one speech is a commitment on the record (one he should be reminded of and often). And this particular speech had a lot of truth and justice in it.
McCain’s speech should be a reminder to those who are concerned about judicial activism that elections matter. And not just to the office a candidate is running for.
© 2008, Newspaper Enterprise Assn.