Straight Talk Slowdown

Why isn't John McCain criticizing Joe Biden over Supreme Court nominations?

Damon W. Root | September 9, 2008

Speaking last Thursday at the Republican National Convention, Sen. John McCain (R-Ariz.) received a roar of approval after declaring his support for "judges who dispense justice impartially and don't legislate from the bench." Similarly, at the recent Saddleback Forum hosted by bestselling self-help author Rick Warren, McCain cited "the criteria of a proven record of strictly adhering to the Constitution of the United States and not legislating from the bench" as his standard for selecting a potential Supreme Court justice. His official website goes even further, stating: "John McCain believes 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."

Given the strength of such rhetoric, which seems clearly designed to shore up support among conservatives, it's notable that McCain hasn't made more noise about Sen. Barack Obama's (D-Ill.) choice of running mates. After all, as chairman of the Senate Judiciary Committee from 1987 to 1995, Sen. Joe Biden (D-Del.) played a central role in perhaps the two most controversial events in modern judicial history: the Supreme Court confirmation hearings of Judges Robert Bork and Clarence Thomas.

Bork, a federal appeals court judge and former solicitor general in the Nixon administration, was nominated by President Ronald Reagan in 1987 to fill the vacancy created by retiring Justice Lewis Powell. As Bork sees it, he faced unprecedented opposition from desperate left-wing groups aided and abetted by the Judiciary Committee's leading liberals, Sen. Biden and Sen. Ted Kennedy (D-Mass.). In his book The Tempting of America (1990), Bork describes the Biden Report, a legal brief prepared for Biden that critiqued Bork's views on issues ranging from abortion to executive power, as having "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."

Four years later, Biden was in the thick of it once more, overseeing the confirmation of Clarence Thomas to replace Justice Thurgood Marshall. Though today the Thomas hearings are remembered almost exclusively for the sexual harassment charges leveled by Anita Hill, Biden actually kicked it off by trying to discredit Thomas as a wild-eyed libertarian. Among other things, Biden waived around a copy of Richard Epstein's landmark book, Takings (1985), which argues that under the Fifth Amendment the government must pay just compensation to property holders affected by certain regulations, demanding to know if Thomas agreed with the book's content. As Epstein later told reason, "I took some pride in the fact that Joe Biden held a copy of Takings...and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."

Clarence Thomas is a bit less charitable. In his recent memoir My Grandfather's Son (2007), he alleges that Biden was intentionally dishonest throughout their dealings, claiming that the senator told him, "since I'd be nervous at first, he would start the questioning with a few ‘softballs' that would help me relax and do my best." Instead, as Thomas recounts it, Biden "threw a beanball straight at my head...[and] wrenched my words out of context."

All of which makes you wonder why the McCain camp is holding back on the Democratic VP nominee. If the judiciary is so important to conservatives, why not bring up Biden's roles in keeping Bork off the Court and in nearly derailing Thomas? Perhaps the best explanation is McCain's own record. Unlike Biden, who's been a fierce partisan on the courts for two decades, McCain is a very recent convert to the cause of conservative jurisprudence.

Audience members at the Saddleback Forum, for example, might have been surprised to learn that McCain voted to confirm Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, despite the fact that he made a point of describing each of them as the wrong sort of justice for the Court (he held up Chief Justice John Roberts and Justice Samuel Alito as his models).

Moreover, McCain was a key player in the so-called Gang of 14, the seven Republican and seven Democratic senators who joined forces in 2005 to end the Democratic filibuster of conservative judicial nominees and to forestall the Republican "nuclear option" of banning such filibusters outright. In the eyes of many conservatives, this compromise crippled the GOP's efforts and effectively killed several of the nominations. Focus on the Family leader James Dobson, for instance, cited the Gang of 14 as one of the reasons why he "will not vote for Sen. John McCain as a matter of conscience."

Which leaves McCain in the lurch. On the one hand, he needs to deliver red meat rhetoric about the courts, something that Biden's actions seem tailor-made to fit. But on the other hand, spelling out his opponent's misdeeds threatens to remind conservatives of his own. For a self-styled straight talker, it's got to be an uncomfortable spot.

Damon W. Root is an associate editor of reason.

Comments

HEY REASON EDITORS CHECK THIS |9.9.08 @ 1:03PM|#

FROM THE ONION

|9.9.08 @ 1:03PM|#

Answer: Because the Republicans aren't wasting their time, energy, blog posts, and editorials on the Dem candidate for vice president! Unlike the left, which is wasting ALL its energy on all Palin, all the time. Every time a blogger or editorialist hyperventilates about the lates Palin scandal, they are missing an opportuinty to attack Mccain. McCain sits back, untouched, while the Dems punch themselves out on the VP pick. The Dems are falling into a trap of their own making.

The GOP is ignoring Biden because they know that in the voting booth, nobody really cares about the veep.

|9.9.08 @ 1:17PM|#

McCain sits back, untouched, while the Dems punch themselves out on the VP pick

Exactly. I can't understand why they can't see this. It must be because the GOP had the temerity out-identity-politic them and it's driving them nuts.

|9.9.08 @ 1:19PM|#

Also: good picture, but nothing beats the McCain vein-popping-yelling one.

|9.9.08 @ 1:36PM|#

Epi-

Do you think that the McCain folks anticipated the reaction and that this anticipation factored into the Palin pick?

|9.9.08 @ 1:36PM|#

Caption Contest!

"OOOOOOOOOOOOOOOBama!"

"Sarah, you are a HOOOOOOOOOOOO!"

"Quick, how many pleats on my forehead?"

Neu Mejican|9.9.08 @ 1:37PM|#

Fishfry/Epi...

I'll repeat the quote of the day...


"If they can get you asking the wrong questions, they don't have to worry about answers," - Thomas Pynchon.

|9.9.08 @ 1:40PM|#

McCain voted for Souter, Ginsburg and Breyer, because they were qualified to be on the bench, even if they may have had different views. That has generally been the standard by which the Senate has evaluated nominees. If anything, the worse you can say about McCain (and the vast majority of other Republican senators who voted to confirm) is that he wasn't as nasty as Biden and Kennedy.

As for Souter, he was a Republican nominee whose views only became clear after he was on the bench for a few years.

|9.9.08 @ 1:40PM|#

mike, if McCain's people are truly that Machiavellian then I want some lessons in evil from them. But I suspect that they picked her for the obvious reasons, and the left's inability to stop dogging her for even an instant is just a happy side effect.

|9.9.08 @ 1:49PM|#

"If they can get you asking the wrong questions, they don't have to worry about answers," -

Uh huh.

Neu, are the Dems actually going to blow this one? Is the party of Mondale, McGovern, Dukakis and Kerry,* going to screw the pooch again?

* Maybe I should add Clinton in there. After all, he is the totality of their presidential campaign successes** since 1964.

** Carter barely beating the man who pardoned Nixon was kinda like beating the Washington Generals in basketball. Nothing to crow about.

|9.9.08 @ 1:50PM|#

If nothing else, I am grateful for the reminder of one reason why I despise Biden so.
The attack dog circus on Thomas was a national disgrace.

In spite of the fact that he can be as wrong-headed as any of us, Thomas is the first SCJ in ages to actually believe in the Constitution.

Neu Mejican|9.9.08 @ 2:00PM|#

Neu, are the Dems actually going to blow this one?

I will be amazed if McCain wins.

It will be close, but I think we independent voters, who will decide this election as usual, are less susceptible to the "Republicans are the party of change" message that McCain is pushing...particularly when you note that his convention speech hit all the same talking points as GWB's.

But maybe I am wrong.

anon|9.9.08 @ 2:00PM|#

Ironically enough, now it's the left calling for an end to "judicial activism". And they're not talking about Kelo.

Neu Mejican|9.9.08 @ 2:03PM|#

Now, of course, Palin has shored up the R base, but among the Republicans in my family, none are too enthusiastic with McCain, and none think Palin changes the equation.

One of the conservative leaning independents in my family has stated that she is "not sure she can support McCain anymore" based on the Palin pick.

It will come down to who gets out the vote.
It seems the D's have the advantage this time around.

|9.9.08 @ 2:04PM|#

Because McCain's recent conversion to conservative judicial theory is at odds with his own past, which includes voting in favor of precisely the sort of liberal judges he now denounces.

Good grief, Damon, you insist on being an embarrassment to the entire magazine. Justice Ruth Bader Ginsburg was confirmed by a 96-3 vote. I sincerely doubt that only Sens. Helms, Nickles, and Bob Smith would have failed to nominate her. Justice Stephen Breyer was confirmed by a 87 to 9 vote.

Surely a politician can vote for a qualified person with whom they strenuously disagree and would never nominate? I suppose I can see a libertarian argument for making the nomination system entirely dysfunctional and keeping the courts from being able to do anything, but are you serious here?

Damon's views, if adopted widely, would be an absolute guarantee that no libertarian nominated would ever be confirmed. Perhaps your argument is that the Douglas Ginsburg and Clarence Thomas nomination fights prove that many Republicans have been "too nice."

|9.9.08 @ 2:08PM|#

Ironically enough, now it's the left calling for an end to "judicial activism". And they're not talking about Kelo.

Perhaps. Interesting poll from Rasmussen:

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama's supporters agree. Just 11% of McCain supporters say judges should rule based on the judge's sense of fairness, while nearly half (49%) of Obama supporters agree.

In terms of how the Supreme Court currently makes decisions, just 42% of voters think the justices rule from what is in the Constitution. Thirty-percent (30%) say they are guided by a sense of fairness and justice. Democrats are more likely than Republicans and unaffiliated voters to believe the justices base rulings on the Constitution.

Apparently Democrats believe that judges currently:

1) Rule based on the Constitution
2) Shouldn't, but should rule on their personal sense of fairness.

This, ruling on the basis of a personal sense of fairness instead of the Constitution, is one traditional definition of "judicial activism" before everyone decided to get in there and use the phrase to mean whatever that wanted it to mean. (I agree that the phrase is so confused that it should be abandoned.)

BakedPenguin|9.9.08 @ 2:08PM|#

sage - he was singing along to this.

|9.9.08 @ 2:13PM|#

Epi-

If you are one of the 6 and 7 figure campaign stategists/advisors, shouldn't you be thinking like Machiavelli when it comes to such matters?
Also, would you want Bob Barr's people or any libertarian candidate's strategists to have a certain Machivellian bent to them?

|9.9.08 @ 2:16PM|#

BP - I don't do youtube at work. What's the tune?

|9.9.08 @ 2:24PM|#

I submit that there is no political downside to the Obama ticket on account of Biden helping to bork Bork. As for libertariran concerns, Bork was a statist's dream.

Neu Mejican|9.9.08 @ 2:26PM|#

1) Rule based on the Constitution

Please expand on what "based on" means.

Neu Mejican|9.9.08 @ 2:30PM|#

The questions asked...

2* Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?

60% What's written in the constitution
30% It should be guided by fairness and justice
11% Not sure.

3* How does the Supreme Court work today? Does it make decisions primarily based on what's written in the Constitution and legal precedents or is it guided mostly by a sense of fairness and justice?

42% What's written in the constitution
30% By fairness and justice
28% Not sure

I don't think these questions get at people's underlying judicial philosophy very well.

Abdul|9.9.08 @ 2:37PM|#

Caption contest: First person to throw a grape into my mouth gets a souvenir flag!

As for this McCain voted to confirm Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, despite the fact that he made a point of describing each of them as the wrong sort of justice for the Court (he held up Chief Justice John Roberts and Justice Samuel Alito as his models).

McCain may have voted for Breyer and ginsburg because he thought that was the best deal he was going to get from a Democratic administration.

As for Souter, he bamboozled us all. I still remember NOW press releases threatening to "Bork" him! I'm sure Geo. H.W. Bush wishes they had.

|9.9.08 @ 2:38PM|#

If you are one of the 6 and 7 figure campaign stategists/advisors, shouldn't you be thinking like Machiavelli when it comes to such matters?

Sure, I just don't think they're that smart. Like I said, if they planned this whole thing, I want some lessons, Senator Palpatine.

Also, would you want Bob Barr's people or any libertarian candidate's strategists to have a certain Machivellian bent to them?

Sure, that's their job. Barr getting elected, even if he stays 50% schmuck, would still be light years better than the other two.

Paul|9.9.08 @ 2:49PM|#

freedoms are willful judges who usurp the role of the people and their representatives."

I dunno, the role of the people and their representatives have been the cause of more loss of freedom than anything else I can remember. Judges are supposed to dampen the effect of the people and their representatives.

BakedPenguin|9.9.08 @ 3:02PM|#

sage - "I Do" by J Geils. It was the goofiest song I could think of where someone would make that face.

|9.9.08 @ 3:33PM|#

I don't think these questions get at people's underlying judicial philosophy very well.

Certainly they aren't the end-all, be-all, no, but certainly an 82-11 split versus a 29-49 split the other way means something, don't you think? The questions may not get at everything about a person's underlying judicial philosophy, but they certainly get at something that the two large groups of people disagree about (at least rhetorically).

|9.9.08 @ 4:57PM|#

Oh. For some reason I thought when I get home I'm going to get rickrolled.

Neu Mejican|9.9.08 @ 5:09PM|#

John Thacker,

certainly an 82-11 split versus a 29-49 split the other way means something, don't you think?

Yes, it means something. The difficulty is determining what.

I would guess it has something to do with the way the people interpret the questions themselves.

Words like "fairness" and "justice," for instance, have a different meaning to McCain supporters and Obama supporters I would guess. In a conversation, I would guess the groups would be closer to agreement on what a judge does and how they should go about it.

|9.10.08 @ 7:15AM|#

"I would guess it has something to do with the way the people interpret the questions themselves."

Perhaps, but certainly it also reflects my own experience. Conservative and libertarian voters and politicians frequently complain that the problem is that judges don't follow the Constitution. My friends who are liberal almost always complain about the unfairness of particular rulings that they disagree with, as do liberal politicians.

The only personal example I can remember of a liberal friend of mine arguing that a ruling was unfair and wrong but had to be done according to the Constitution was my college and grad school roommate insisting that Kelo was rightly decided. Of course, YMMV.

Certainly I'm sympathetic to the idea that both conservatives and libertarians have a tendency to, while they insist that judges should follow the Constitution, assume that the Constitution means what they think it does and what they think is fair and just. (To me, arguments about the Ninth Amendment are likely to take on this nature, as people imagine that the Ninth Amendment should grant whatever rights seem inherently fair and just to them.) As well, the argument that "this is unfair, but it's the Constitution" certainly can be a fig leaf for people who don't actually think that something is unfair, or who actually favor the consequences, but who want a cover for their actions. I grant all that. But it appears that many liberal votes concentrate only on the unfairness and are less concerned about even a patina of Constitutional concern.

JMR|9.10.08 @ 9:46AM|#

Following the Thomas dissent in Raisch (the only readable, coherent part of the entire decision, IOW) it's understandable that Democrats & libertarians are talking about "fair weather federalists." And for the inevitable morons, this isn't about pot, it's about a principle. Remember those??