McCain Nearly Strikes Right Tone on Judges

I will readily state that I have major misgivings about our Presidential nominee when it comes to judicial nominations. His history in the Senate of spurning highly qualified nominees in favor of the media-grabbing “middle ground” gives me pause when I consider whether I can cast my ballot for the chosen one. That said, his speech today in North Carolina suggested that he might be alright on the issue. Although it will take a lot more to convince many conservatives that McCain can be trusted on the issue, his speech today demonstrated a greater understanding of the problem of judicial abuses than his previous statements.

McCain promised to nominate judges like John Roberts, Sam Alito, and William Rehnquist, whom he says have avoided legislating from the bench. Each of those judges has a solid history of focusing on the law rather than their own personal views. Each of them would also have had a difficult time getting through a Senate with a solid Democrat majority. If McCain is to be trusted on this issue, we can look forward to some knock-down, drag out nomination fights.

Here are some highlights from his speech:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges…

The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself…

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and “evolving standards of decency.” These meditations were in the tradition of “penumbras,” “emanations,” and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

Although the speech was generally welcome news, Sen. McCain failed to apologize for his votes to confirm both of President Clinton’s Supreme Court nominees. He failed to recognize that he is partially responsible for the abuses of the Courts because he voted to confirm many of the judges abusing their judicial power. Unless and until Sen. McCain comes to terms with that reality, there will always be lingering doubts about the types of judges he would nominate.

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