Sen. McCain & the Judiciary

Second only to the role of commander-in-chief, a President’s most solemn and consequential function is to appoint judges to the federal judiciary. Once appointed these jurists serve for life, kept accountable only by the substance of their own jurisprudence and the dictates of their conscience. From behind their august bench it is entirely within their power to willfully manipulate the laws and the Constitution of the United States in all manner of ways which their textual import does not bear.

If privileged to serve as our 44th President, Sens. Clinton and Obama have made it all too clear that this is exactly the type of judge they will appoint to the bench and the Supreme Court. Assuming awesome powers they do not rightfully possess, these judges would continue the federal judiciary’s steady trespass into the provinces and functions of the elected branches of the federal, state, and municipal governments that has been problematic for the past half-century. These are judges who will interpret the Constitution as entirely malleable to the dictates, caprices, and “evolving standards of decency” of themselves and their colleagues.

This is not acceptable. The province of the federal judiciary is to interpret and apply the text of the laws and Constitution of the United States in accordance with the import they carried when they were originally adopted, not to refashion them in a manner they deem appropriate, which is always inappropriate. In a regime based upon popular consent, judicial adventures into the realm of the political branches are intolerable and an absolute anathema to democracy. As President Lincoln so ably put it in his first inaugural, “the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

In his speech on the federal judiciary today Sen. McCain recognized this, pledging to

"look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist — jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States."

Let this sentiment not be once uttered in today’s speech and never again in the campaign. I would urge the senator return to it again and again, creating a clear distinction and choice for the voter between his opponent and himself. He ought to reiterate that whether you are conservative or liberal, those issues of the greatest significance to the republic must be decided the correct way through the legal and Constitutional political processes that have served us as a people throughout our history, whether you agree with the ultimate results or not. The federal judiciary has its place in our Constitutional republic, it should remain within that. This is only achieved by appointing the right type of judges to the bench, the type of judges Sen. McCain now promises to appoint as President.