Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Tuesday, May 6, 2008

Thoughts on the judiciary

Yesterday, John McCain delivered a knock-out speech at Wake Forest University on the judiciary. This is part of his strategy to assure Republicans that he is one of us, and that he understands what he will have to do if elected. Furthermore, with this speech, he explains the differences between his idea of the proper jurist to sit on the federal bench, especially the Supreme Court, and the ideas that the Democrats running for the nomination have regarding federal judges. Michelle Malkin has the entirety of his speech on her site here, but Captain Ed picked up on a key point that simply must be revisited:

Here, too, Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don’t seem to mind at all when fundamental questions of social policy are preemptively 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 Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. 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.

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me. And yet when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make. ...

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. And the only remedy available to any of us is to find, nominate, and confirm better judges. ….

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of “judicial activism.” But 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. And even in courtrooms, they apply a double standard. Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game.

Captain Ed also took note of the fact that Rudy Giuliani weighed in on his speech, but also Obama's inane response:

KELLY: Well, it didn’t take long for Obama’s camp to fire right back. At that, we’ll get to the Obama campaign reaction in a minute. First, we want to get the mayor’s reaction to John McCain’s accusation saying that Obama — and he actually took aim at Clinton, too, having an elitist view of judges.

GIULIANI: I would say that’s a very legitimate difference, rather than a charge or an accusation. John McCain is going to appoint judges who are conservative. Barack Obama will appoint judges who are left-wing. He will appoint activist judges who are activist judges in the sense of trying to take the Constitution and move it into solving social problems rather than feeling stuck with the words of the Constitution.

KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court 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.”

Why the laughter?

GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.

And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.

I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?

Let's focus on Obama, because Clinton has a snowball's chance in Hell of getting the nomination right now. Obama's statement does smell a great deal like support for activist judges. Social issues should be determined by the voters or the legislative branch in the federal government, or the state governments. The role of judges in our representative republic is simple: Interpret the law. Don't make it up as you go to serve personal policy preferences, or to serve activist positions of the people.

Joseph Story explains this in his Commentaries on the Constitution of the United States:

"It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent on the caprice, or will of particular judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles."

He warned that it wasn't the will of judges that should be the ultimate arbiter of judicial questions, but rather the law itself. He points out earlier in this particular dissertation that the Constitution is the "supreme law of the land." If that is to be believed (and it is by both Marcie and myself, and a great deal of legal scholars), then the sort of jurists we expect on the federal bench, the Supreme Court specifically, are those that will abide by the law; interpreting it based on what the Constitution says and means, not on the particular preferences of the jurist themselves.

For example, if I were on the high court, and a case was accepted dealing with a First Amendment question -- Can schools allow a prayer at graduation -- I would focus on what the Constitution says rather than simply going by my personal beliefs. My personal beliefs say "Yes because the graduating students need all the prayers they can get." (Idiotic, to be sure, but tell me I'm wrong.) On the other hand, I would look to what the First Amendment says about the freedom of speech, and the free exercise of religion. Obviously, a public school is not a religious institution, so the latter is tossed, and the former is addressed. Does a benediction constitute a breach of the so-called, and unable to be cited separation of Church and State? No, it does not. The definition of a benediction is, literally, a blessing, or an expression of good wishes and tidings. It has a religious connotation to it, of course, but it also has a contrary definition. Words mean things, and they can't be narrowly defined. In essence, a non-denominational benediction over a graduating class falls under the Freedom of Speech Clause, rather than the Establishment Clause. (In Lee v. Weisman, 1992, the Supreme Court took up a case similar to this, and ruled in a 5-4 decision that a benediction violated the Establishment Clause of the First Amendment; Justice Antonin Scalia wrote a scathing dissent in the case.)

Point being is that John McCain would nominate jurists to the federal bench, specifically the Supreme Court, that would follow the law, and have a more originalist judicial philosophy. Obama would nominate activists that would base their decisions on social issues and causes rather than the rule of law. This is simply another example of why Democrats can't be trusted with the White House. Their appointments would ensure decades of activist decisions that would shred the Constitution beyond repair.

Publius II


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