The executive, legislative, and judicial branches are often wary of one another’s excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn’t always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.There is one great exception in our day, however, and that 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. 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.
Solution:
And the only remedy available to any of us is to find, nominate, and confirm better judges.He's exactly right to point out that lack of judicial restraint undermines the moral authority of law...
The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gauntlet of abuse.That's indeed the largest harm done, more harmful than any particular bad decision. Every act of judicial overreach undermines the rule of law itself, and is thus an attack on freedom. I'm also rather charmed by the fact that he couches the whole matter as a question of honor (as he of course would).
Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power.And later:
real activism in our country is democratic. Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don’t seek to win debates on the merits of their argument; they seek to shut down debates by order of the court.Loved this intensifier for what confirmation battles are like:
Always hanging in the air over these tense confirmation battles is the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution. And then no tactic of abuse or delay is out of bounds, until the nominee is declared “in trouble” and the spouse is in tears.He hits Hillary & Obama hard, esp. Obama:
Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it — and I quote — should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other.
And I think he gets a dig in at Bush, too. Surely he means Harriet Miers here?
in the presidential selection of those who will write those decisions, a hunch, a hope, and a good first impression are not enough.McCain, by contrast, pledges:
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.
He closes with his ideal:
There was a day when all could enter the federal courthouses of our country feeling something distinctive about them — the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice.
He defends the Gang of Fourteen, which I was angry about at the time but have come to think McCain was right about. (The prospective next Congress focuses the mind, shall we say.) I'm happy; the speech strikes me as just right --at least in the sense of "base-pleasing." In fact my only quibble (well, more than a quibble, actually) is with "the only remedy.... " He hints at what I'm thinking of when he says
Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them.Which implies that there are ways for the other two branches to reign in the courts. What might those be? The answer to that question is how we get out of the hole we're in. But that's a discussion for another time, and I think beyond McCain's ken. In the meanwhile, I'm pleased, or pleased enough, and hope McCain makes judicial activism and his discussion of the feckless Senate key points in his campaign.
