In McCain’s Court
by Jeffrey Toobin
The New Yorker
May 26, 2008
Successful politicians know how to attract attention, and how to avoid it, so it’s worth noting that John McCain chose to give his speech about the future of the judiciary on May 6th, a day when the political world was preoccupied with the Democratic primaries in Indiana and North Carolina. It is significant, too, that Senator McCain spoke mainly in generalities, rather than about such specific issues as abortion, affirmative action, and the death penalty. But even if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.
McCain began the speech, at Wake Forest University, in Winston-Salem, North Carolina, with a paean to the wisdom of the framers of the Constitution in establishing the separation of powers. “The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be,” he said, before adding, in a comforting way, “The system of checks and balances rarely disappoints.” Still, he warned against complacency, because “there is one great exception in our day” to the smooth functioning of the separation of powers. This is surely true: the Bush Administration has sought to expand executive power in an unprecedented manner, especially with respect to the President’s ability to authorize torture, ignore the Geneva conventions, and order the surveillance of citizens.
But that was not what McCain had in mind. Instead, he pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. 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.” This, of course, is a view functionally identical to President Bush’s often expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “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,” he said. “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.”
(Continued here.)
The New Yorker
May 26, 2008
Successful politicians know how to attract attention, and how to avoid it, so it’s worth noting that John McCain chose to give his speech about the future of the judiciary on May 6th, a day when the political world was preoccupied with the Democratic primaries in Indiana and North Carolina. It is significant, too, that Senator McCain spoke mainly in generalities, rather than about such specific issues as abortion, affirmative action, and the death penalty. But even if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.
McCain began the speech, at Wake Forest University, in Winston-Salem, North Carolina, with a paean to the wisdom of the framers of the Constitution in establishing the separation of powers. “The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be,” he said, before adding, in a comforting way, “The system of checks and balances rarely disappoints.” Still, he warned against complacency, because “there is one great exception in our day” to the smooth functioning of the separation of powers. This is surely true: the Bush Administration has sought to expand executive power in an unprecedented manner, especially with respect to the President’s ability to authorize torture, ignore the Geneva conventions, and order the surveillance of citizens.
But that was not what McCain had in mind. Instead, he pronounced that the great exception “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. 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.” This, of course, is a view functionally identical to President Bush’s often expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “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,” he said. “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.”
(Continued here.)
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1 Comments:
In all the debates thus far, I cannot recall one question concerning Executive Power. With extensions by the Bush Administration (including the use of signing statements), this is very disappointing that the questioners have ignored this while addressing flag pins. Clinton should have an interesting challenge while Obama coming from his Constitutional Law background should have had some interesting opinions … while, I am afraid that just like economics, McCain may have had little to offer … and that’s the scary part … who will by his John Yoo or Alberto Gonzoles ?
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