Campaigns/Elections

Here Come Da McCain Judges!

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GOP Prez Candidate Sen. John McCain (R-Ariz.) vows to appoint good conservative judges if elected:

John McCain made a play to the GOP's right wing yesterday, vowing to appoint conservative judges like Chief Justice John Roberts Jr. and Justice Samuel Alito and blasting Democratic rivals Barack Obama and Hillary Rodham Clinton for voting against them.

In a speech his campaign billed as a major address on the judiciary, McCain delivered a harsh critique of "judicial activists" who over step their Constitutional bounds. He also lambasted Democrats for blocking GOP nominees to the bench by turning the confirmation process into a "gauntlet of abuse."

More here.

Never forget: John Roberts played Peppermint Patty in his high school production of You're a Good Man, Charlie Brown, which should have disqualified him from something.

reason's Damon Root on why some libertarian activism on the high court can be a good thing:

A principled form of libertarian judicial activism—that is, one that consistently upholds individual rights while strictly limiting state power—is essential to the fight for a free society….The real legal challenge facing libertarians isn't judicial activism; it is defending individual rights from the liberals and conservatives who seek to take our liberties away.

More on that here.

Why the Supremes don't really reign so supreme, according to legal scholar Mark Tushnet:

If you're trying to chart the direction of the country–and I'll make up a number here–95 percent of it is due to changes in culture and politics. The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction. But 10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it. I've used a metaphor from sound engineering. It's "noise around zero."

More on that here.

And given we started off talking about John McNasty McCain, for Zod's sake, buy reason editor in chief Matt Welch's essential guide to the straight-talking expresser, McCain: The Myth of a Maverick.

NEXT: To Catch a Leaf

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  1. I really, really, really hate the right’s bullshit on “Judicial Activism”. They love judges to be activist when cases agree with their side; it’s just code for “uphold the death penalty, strike down Roe“.

    Damon Root is absolutely right; you need judges which are highly suspect of the legislature’s actions, and rigorously tests them against the rights and restrictions outlined in the Constitution. The court was on the right track with Lopez, has backslid since then.

  2. So McCain wants to nominate judges that kiss the executive’s ass and are willing to allow it virtually unlimited power.

    Gomer Pyle voice:

    Surprise, surprise, surprise.

  3. But 10 years down the line, the society’s going to be pretty much where it would’ve been even if the courts hadn’t said a word about it.

    Forced school integration is an excellent counter-example.

  4. MP,

    I disagree. I think school integration is an excellent example. First thing I thought of, in fact.

    Now, we would have never have gotten to the extremes of the bussing era, but we would have been at the point we are today much earlier, in fact.

  5. Forced school integration is an excellent counter-example.

    That was half a century ago. Also, Brown v. Board wasn’t enforced (and arguably wasn’t enforceable) until the executive started to pull the funding away from schools that dragged their heels on integration.

    You can find a few counter-examples, and I’ll grant you that Brown v. Board is one of the best, but most cases before the supreme court are “noise around zero.” And we want it that way because ordinary citizens have more influence over their legislators and executives then their judges.

  6. Now, we would have never have gotten to the extremes of the bussing era, but we would have been at the point we are today much earlier, in fact.

    Forced integration was meant to integrate communities, not simply individuals. Community divisions today are almost as stark as they were 40 years ago. Forced busing didn’t almost nothing to change the societal integration patterns of communities. In fact, I would suggest that the disruptive nature of busing (marginally) helped to keep the walls between racially divided communities (in the Northeast, at least).

    In the end, people chose to live where they wanted to. No amount of judicial interference was, or will, change that.

  7. “Never forget: John Roberts played Peppermint Patty in his high school production of You’re a Good Man, Charlie Brown, which should have disqualified him from something.”

    Let me guess: The Republican Party played Lucy, and the conservatives play Charlie Brown.

    LUCY: “I promise I won’t pull the football away this time like I did with Warren, Brennan, Blackmun, Souter, Kennedy, O’Connor, etc. etc. This time I *really* mean to find some sound judges.”

    CHARLIE BROWN: “Uh, OK, just because you pulled the football away the last million times doesn’t mean you’re going to do it again, right?

    “AAAUUUUUUUUUUGHHHHHHHHH!!!”

    LUCY: “Charlie Brown, you’re such a fucking retard.”

  8. if (judge makes a decision I disagree with ) {
    judge = judicial activist }

  9. MP,

    In Louisville, bussing absolutely hurt things, and that was a court decision. However, to say that communities havent integrated is silly. My neighborhood growing up was white – totally. While it is still majority white (my parents still live in the same house I grew up in in the 70s), there are plenty of black families and a growing number of hispanic families. Blacks started moving into the area in the 80s, with growing numbers in the 90s. Hispanics this decade.

    The integration of the neighborhoods was going to happen anyway. “Perfect” integration is never going to happen because people tend to clump with people of similar characteristics. As long as people notice race, racial clumping will happen.

  10. if (judge makes a decision I disagree with ) {
    judge = judicial activist }

    Bullshit. I hate when people say that. Judicial activism is easy to spot – look for penumbras.

  11. and emanations.

  12. Have any of the dire predictions we see every four years actually come true regarding Supreme Court appointees? Hell, if half of them were accurate Roe v. Wade would have been overturned years ago, same-sex marriage would be the law of the land, and yes–cats would be sleeping with dogs. On collective farms. Run by pigs in overalls.

  13. ed,

    Yes, it’s funny how *Roe v. Wade* is still enforced by the US Supremes and by the federal courts, despite numerous Republican victories on an anti-abortion, anti-*Roe* platform. Almost as if the Republicans didn’t *actually* want *Roe* to be overruled. If it’s overruled, how can they trick the conservatives into voting for them – “don’t vote for a third party – stick with us, we’re about to overrule *Roe!*”

  14. cats would be sleeping with dogs

    Dogs and cats, living together–mass hysteria!

  15. I’d like to hear McCain’s thoughts on whether he’d appoint judges that properly view that McCain-Feingold is an attempt by Congress to abridge the free speech of a group of individuals. Because if he won’t, it seems that all the excitement that he would, as Presdient, appoint judges to strictly interpret the Constitution is a bit premature.

  16. cats would be sleeping with dog

    You were saying?

  17. Im too slow. MMs is better too.

  18. Damon Root on why some libertarian activism on the high court can be a good thing

    Also, free ponies can be a good thing. You do realize that Supreme Court justices have to be appointed by the President and approved by the Senate, right? How did Douglas Ginsburg’s nomination go again? (Heck, I’d ask how did Justice Thomas’s nomination go, considering his occasional forays into libertarian rulings, but perhaps there were other things there.)

    I’m not really sure that libertarians need “judicial activism” of sort of the Lochner Court’s substantial due process. Merely taking the Constitution seriously about a few issues (including free speech and right of petition, Sens. McCain and Feingold) would be a big difference given the state we’re in.

    At least in that same speech Sen. McCain cited Kelo as a specific Obmama campaign response is just frightening to me.

    The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman’s right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

    McCain would nominate judges who would gut McCain-Feingold? Awesome news Obama campaign, you’ve made me feel a lot better. I get the shivers when a candidate claims that his number one goal is to nominate judges who will rule for “social and economic justice.”

    I have plenty of reasons to be dissatisfied with Sen. McCain, including the philosophical and temperamental ones that Reason seems to find so important. However, I find him better or no worse than either our current President or the two viable alternatives (or most of the other Republican primary contenders) on most issues, including Kelo, the farm bill, etc. (Not a big fan of drug re-imports, though again that’s really a no worse position.)

  19. A principled form of libertarian judicial activism-that is, one that consistently upholds individual rights while strictly limiting state power-is essential to the fight for a free society.

    Well, sure, but this isn’t really “judicial activism” – properly understood as legislating from the bench. This is no more than enforcing the Constitution as written.

    I really, really, really hate the right’s bullshit on “Judicial Activism”. They love judges to be activist when cases agree with their side; it’s just code for “uphold the death penalty, strike down Roe”.

    I agree with the first sentence. As to striking down Roe, well, that’s not activism, that’s reversing activism, because Roe cannot be justified based on the Constitution as written. Whether the death penalty is unconstitutional is an interesting topic, and comes down to how much of an originalist you are.

  20. Crap, deleted a quotation mark (I believe) before the final posting. Oh well.

  21. he’s way better than Ron Paul though…I mean, McCain never affixed his name to racist newsletters. thank god Reason made that abundantly clear. we owe you so much.

  22. I’m curious to hear what kind of SCOTUS candidates Obama will offer in the general.

    Unfortunately, as others have noted, we’re locked into a situation where both sides are nearly as bad on individual rights, just in different ways.

  23. Yes, it’s funny how *Roe v. Wade* is still enforced by the US Supremes and by the federal courts, despite numerous Republican victories on an anti-abortion, anti-*Roe* platform.

    Stare decisis.

  24. “Stare decisis.”

    Like when, in *Casey,* the decisive plurality opinion rejected the trimester framework which was so central to *Roe,* while at sanctimoniously preaching about the importance of upholding *Roe*?

  25. Forgot to take of my top-secret Obama disguise.

    “Stare decisis.”

    Like when, in *Casey,* the decisive plurality opinion rejected the trimester framework which was so central to *Roe,* while at the same time sanctimoniously preaching about the importance of upholding *Roe*?

  26. But Roe stands. Casey was fairly minor by comparison.

    They might chip away at Roe, but I doubt the overall question of legal abortion will ever be returned to the states.

  27. Tell me, Reason, which candidate should I not be afraid of?

  28. I agree with the first sentence. As to striking down Roe, well, that’s not activism, that’s reversing activism, because Roe cannot be justified based on the Constitution as written. Whether the death penalty is unconstitutional is an interesting topic, and comes down to how much of an originalist you are.

    Re: reversing activism. Well, I agree that it is hard to make a constitutional case for Roe, and it was activism *at the time it was made*. However, it has been settled law for going on 35 years now. Isn’t respect for stare decisis a hallmark of judicial restraint?

    Mad Max,

    I don’t find the trimester framework to be as central to the meaning of Roe as you seem to. The rest of the decision remained intact, and abortion is still federally legal.

  29. It is very convenient to have *Roe* on the books. Dems can pose as “defenders of the Constitution” instead of defenders of abortion. Reps can get the votes of those who oppose abortion, while never actually doing anything about it.

  30. Isn’t respect for stare decisis a hallmark of judicial restraint?

    Yes. Even poorly constructed law gains a patina of respectability with age.

  31. Reason for President.

  32. lmnop,

    Fuck stare decisis. Unconstitutional remains unconstitutional, not matter how long on the books.

    Of course, I dont favor “judicial restraint”. I think they should follow the constitutional and if it leads to chaos, so be it.

  33. Re: my previous post, I would love for the Supremes to chuck all of the commerce clause nonsense in one full swoop, with the results chaos that would ensue. I know Scalia has made comments along the lines that that cant happen, it needs to be done incrementally, but he is wrong.

    Oh year, I almost forgot:

    Hail Eris!

  34. s/results/resulting/

  35. Whether the death penalty is unconstitutional is an interesting topic

    I oppose the death penalty for a variety of reasons, but I don’t think its constitutionality is really questionable.

  36. The supreme court matters more than almost every other decision a president makes. We could expect (maybe) a McCain appointee to have ify views on the 1st amendment. But, how would an Obama appointee view numbers 2 through 10? OK, stupid question, we know how such an appointee would view #2 and #10 (they wouldn’t exist). How about the other seven?

    On the supreme court issue, I think the Libertarian love fest for Obama is pretty idiotic.

  37. The term “Judicial Activism” was coined by leftist (I think it was Lawrence Tribe) to describe the idea that judges should not be limited by precedence and evolved law but instead should use their own individual understanding of the world combined with the power of the judiciary to create the outcome they think best.

    A traditional judge often must make rulings based on the law whose outcome he personal dislikes. A judicial activist on the other hand happily discovers that every ruling conforms to his own personal belief in what is best.

    The real danger of this idea is that it will destroy the cultural expectations of the judiciary and that judges and their ruling will become to be seen as just the pronouncements of another blowhard politician with just as much moral authority behind them. When that happens, the judiciary will no longer function as a safeguard of liberty. People will feel entitled to ignore the courts rulings.

  38. bigblackslacker

    While it is probably safe, regardless, I think McCain is the most likely to endanger Amendment 3.

  39. Fuck stare decisis. Unconstitutional remains unconstitutional, not matter how long on the books.

    Of course, I dont favor “judicial restraint”. I think they should follow the constitutional and if it leads to chaos, so be it.

    I agree. I’m just saying that it is not judicial restraint to call for Roe‘s reversal, and that those who do on that basis are full of shit, pasting a patina of respectability on a nakedly self-advantageous judicial philosophy of right-wing wingnuttery.

  40. a) Agreed, fuck stare decisis. Violated the 10th Amendment then, still does now.

    b) Yes, calling for Roe’s reversal is the opposition of past “judicial activism,” which is “judicial restraint,” but more importantly, it is the opposition of the continued rape of our Constitution (see below).

    c) “Show me in the Constitution where…”

  41. I know it’s a tangential point, but I have heard it so many times now I cannot help but say something. Did John Roberts really play Peppermint Patty? There is no such character in “You’re a Good Man Charlie Brown.” I wish the people who track down that sort of thing could figure if this is an urban legend or what?

  42. Well, I agree that it is hard to make a constitutional case for Roe, and it was activism *at the time it was made*.

    If it was a bad decision then, its a bad decision now.

    However, it has been settled law for going on 35 years now. Isn’t respect for stare decisis a hallmark of judicial restraint?

    Yes and no. Sometimes its easier to overturn a recent decision because it’s so new, sometimes its easier to overturn an old decision because society has moved on.

    Stare decisis is in large part a combination of (a) institutional self-interest by judges who are trying to protect their own decisions and (b) a handy excuse for not making close calls.

    The term “Judicial Activism” was coined by leftist (I think it was Lawrence Tribe) to describe the idea that judges should not be limited by precedence and evolved law but instead should use their own individual understanding of the world combined with the power of the judiciary to create the outcome they think best.

    A long way of saying “legislating from the bench.”

  43. Never forget: John Roberts played Peppermint Patty in his high school production of You’re a Good Man, Charlie Brown, which should have disqualified him from something.

    I continue to be amazed at the lengths Reason editors will go to find dirt on someone. They’re all for gay marriage but crossdressing in a school play will disqualify you from the SCOTUS!

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