July 2008: John McCain's Views on Judges and Courts

Washington Watch | July 2008
By Bruce Moyer

One of the defining issues of the 2008 presidential campaign, largely overlooked thus far, is the kind of judicial candidates the candidates will name to the federal courts, especially to the U.S. Supreme Court. This is the first of two columns exploring the views of John McCain and Barack Obama on this issue.

The judicial outlook that McCain and Obama each bring to the Oval Office will have profound and lasting consequences. By January 2009, six Supreme Court justices will range from 69 to 88 years of age, potentially giving rise to the naming of several justices over the next four years. In addition, hundreds of appointments to the district and circuit courts will be made.

Both presidential candidates have spoken or written about their judicial philosophies, suggesting a dramatic contrast in their attitudes about the nature and exercise of judicial power. As senators, both McCain and Obama have created track records on the confirmation of judicial nominees, including two Supreme Court justices.

To date, Sen. John McCain has been more explicit in stating his views. Mindful of the appeal of the issue of judicial activism among the conservative right, McCain devoted a May 6 speech at Wake Forest University to the role of the judiciary and the kinds of judges he would appoint if he is elected President. He decried judges who legislate rather than apply the law, asserting, "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. ... And the only remedy available to any of us is to find, nominate, and confirm better judges." McCain vowed to name candidates to the bench in the mold of Chief Justice John Roberts and Justice Samuel Alito, pledging to "look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. … My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power."

The Republican candidate also criticized both Sen. Obama and Sen. Hillary Clinton for their votes against the nominations of Chief Justice Roberts and Justice Alito. "They are both lawyers themselves and don't seem to mind at all when fundamental questions of social policy are pre-emptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees. For both Sen. Obama and Sen. Clinton, it turned out that not even John Roberts was quite good enough for them," McCain said.

McCain also recently condemned the five justices of the Supreme Court who held that foreign detainees at Guantanamo are entitled to seek habeas corpus hearings, calling their ruling "one of the worst decisions in the history of this country." McCain said that while he has been a vocal opponent of torture and advocated closing Guantanamo, he does not believe enemy combatants deserve the same rights as U.S. citizens. "These are enemy combatants, these are people who are not citizens, they are not and never have been given the rights that the citizens of this country have … Our first obligation is the safety and security of this nation and the men and women who defend it."

Some have suggested that McCain has calibrated his remarks of allegiance to a conservative judiciary to assure those on the right whom he roiled in 2005 when he joined with six other Republicans and seven Democrats in the so-called Gang of 14, which broke a formidable impasse in the Senate on appeals court confirmations. Under the compromise forged by the group, Democrats agreed to cease their filibuster of some of President Bush's appeals court nominees in return for the President's withdrawal of other conservative nominees. Despite the group's success in breaking a deadlock, McCain's membership in the group angered some conservative leaders, leading to lingering distrust over the depth of McCain's commitment to tilting the federal courts to the right.

McCain has appointed an advisory committee on legal policy, headed by former Solicitor General Theodore B. Olson, and including Charles J. Cooper, who assisted in the naming of judicial nominees in the Bush and Reagan administrations.

Next month's column will focus on Sen. Obama and the way he is likely to shape the courts if he is elected President.

Bruce Moyer is government relations counsel for the FBA.
© 2008 Bruce Moyer. All rights reserved.

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