Ho, hum: Another idiotic tirade from University of Chicago law professor Geoffrey R. Stone. I’ve previously documented (see here and here, including links within those posts) the intellectual bankruptcy of Stone’s rantings. Now Stone contends that John McCain’s speech of judges “might very well qualify as one of the most ignorant statements ever made by a presidential candidate on this important subject.”
Well, let’s see who is the real ignoramus:
1. Stone finds it remarkable that McCain could complain that judges “systematically ‘abuse’ the federal judicial power by issuing ‘rulings and opinions on policy questions that should be decided democratically.’” According to Stone, McCain “is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans.”
Stone’s rejoinder is a glaring non sequitur. It’s hardly news that some of the worst liberal judicial activists—from Warren and Brennan to Stevens and Souter—have been Republican appointees. In addition, McCain’s criticism, as he makes clear in the same paragraph Stone quotes, is plainly about “some federal judges,” so there is nothing in his criticism that justifies Stone’s inference that McCain must be complaining broadly about Republican appointees.
2. Stone then contends that McCain “also seems stunningly unaware that the justices he simplistically lauds as ‘judicial passivists’ are nothing of the sort.” But McCain never uses the term “judicial passivists” in his speech (and, so far as I can tell from a Google search, he’s never used it anywhere). Nor would it be a sensible synonym for practitioners of judicial restraint, as the term “judicial passivism” more naturally connotes the judicial error of failing to enforce actual constitutional rights (as I discuss in point 2 here). (But, hey, if you can’t use your authority as a law professor to pass off phony quotes, how can you expect your students to believe all the nonsense you say in the classroom?)
More importantly, Stone’s assertion that the justices McCain praises have engaged in “conservative activism gone wild” is, to put it mildly, a highly contestable proposition that generally rests on bad constitutional theory, wordplay, and gerrymandered statistics. I won’t repeat my various refutations of that proposition here. For present purposes, it suffices that one need not be “stunningly unaware” of Supreme Court decisionmaking in order to have a view very different from Stone’s.
3. The bulk of Stone’s essay is his rambling discussion of the Framers’ views about the role of judges. Stone evidently imagines that he is refuting some proposition that McCain asserted, but I don’t see what it is. Stone argues that the Framers saw advantages in life tenure for federal judges. How is that point incompatible with McCain’s observation that some judges have abused their life tenure and that we need to work hard to pick good judges (not to abolish life tenure)? Stone argues that the Framers expected judges to enforce constitutional rights. McCain plainly expects that as well. His dispute is with judges who invent rights that aren’t in the Constitution and ignore rights that are.