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McCain and the Courts
Last Tuesday John McCain gave a public address about the kind of Supreme Court justices he would nominate if elected. The speech, given in North Carolina, was a failed attempt to grab at least a few headlines while all eyes were turned to the all important May 6th primaries. But with Barack Obama's game-changing -- if not game-ending -- victory that evening, most of McCain's comments were lost to the news cycle, as has been the case for most of the past three months.
Still, McCain's comments are important. With so many Clinton supporters suggesting they would rather vote McCain than Obama, few issues could be more central than McCain's judicial philosophy. As we saw on Tuesday, though unsurprising, his views underscore yet another example of the McCain of 2000 withering into an unrecognizable and incoherent McCain of 2008. McCain said he would appoint judges in the same mold as Roberts and Alito, arguing that, "The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it."
It is hard to understand what John McCain, or others that repeat similar phrasing, could possibly mean by such a statement. Our justice system is based largely on common law, case law in which justices make decisions that do, in fact, become the law. One cannot interpret the law without making it. A judge, no matter his philosophy, when presented with a case in which the law is not explicit, will have to glean from somewhere other than the Constitution what the law ought to be. Even Justice Antonin Scalia must participate in such a practice. The distinction between strict constructionist and activist is a political one more than it is a legal one.
McCain's formulation seems to indicate that though he knows what the Republican talking points are, he does not fully understand what they mean. Where, for example, in the Constitution does he expect to find the phrase, "separation of church and state"? Where in the Constitution does he expect to find the tenet that "separate but equal is inherently unequal"?
And more importantly, what does he expect of judges like Roberts and Alito when confronting his own policy agenda? It was, after all, the Roberts court that stripped a key portion of the McCain-Feingold Act in 2007, a law which, though it may come as a surprise to John McCain, was co-sponsored by John McCain. What would he say of strict-constructionist William Rehnquist, who, writing for the majority, held that, because the Constitution did not explicitly authorize it, Congress could not prohibit guns in schools? How would such a decision resonate with McCain voters in Colorado or Arkansas or Virginia?
Given that the Warren Court was seen as an activist court and Brown v. Board of Education an activist decision, ought we expect McCain to believe that the federal government has no authority to require integration of our schools? Surely, Rehnquist thought so when he wrote a dissenting memo about Brown for the Supreme Court justice he was clerking for at the time. And he is not alone. In a recent anti-segregation case, Roberts struck down a voluntary plan by the Seattle School District to integrate their schools, arguing that there is no state interest in diversity. Such a decision is by its very definition an example of judicial activism: Roberts took action based not a clause of the Constitution, but on his belief that he knew better than the states.
And what about Roberts' dissent in Massachusetts v. EPA, in which he argued that the EPA cannot be challenged by the states to regulate carbon emissions without definitive proof of injuries caused by climate change? In other words, the EPA need not do anything about global warming. How does such a decision square with John McCain's climate change tour?
Unless he is comfortable with justices overturning some of his pet policies, it must not be, as he claims, that John McCain is seeking strict-constructionists to the court. Rather, he is simply using a phrase that he clearly doesn't understand as code to suggest that he is not seeking justices of a specific philosophy; instead he wants judges who will further his right wing ideology.
There are few people in Washington older than John McCain. But among them are four of nine Supreme Court justices. In such a political environment and with so much at stake, including the rights to privacy and choice, will Hillary supporters really choose John McCain?
Such a spiteful decision would mean generations of unimaginable consequences.
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Strict construction? Original intent? It's just a way for Scalia et al to impose their own views from the bench without being accountable. Article II of the Constitution makes the President the commander-in-chief of the Army and Navy. Not the Air Force, Marines or Coast Guard. Where are the strict constructionists on that one? Or the far-fetched notion that a corporation, a fiction created by a state bureaucrat with a fancy stamp, is a "person" with rights equal to or better than mine?
The current Court is aggressively protective of corporations. For example, it is okay to lock up a California man for the rest of his life for stealing a couple of video games. But it is unfair to poor Phillip Morris to have to pay several days' profit in punitive damages for deliberately killing thousands with cigarettes. What a farce.
There is no such thing as 'strict constructionism'. The term is rhetoric, not law, and descibes no attainable legal position or philosophy.
The term "strict constructionist" is likewise: nothing more than an insult, expressed in the negative, by anyone whose cause lost in court.
Well put, it is another Republican term which they have empowered, while at the same time villifying judges' decisions who they don't agree with as something nefarious or "activist."
The most telling part of the constructionist or originalist fraud can be found in one of its founding members words. Scalia once put down judicial review outside of his own as being frivilous because these judges could go home happy after making a decision based upon their politics because it turned out that "...the Constitution means what I thought it meant."
The only difference with originalism is sheer cowardice, that the author doesn't even have the fortitude to put his name on it and say this is his opinion. Rather, originalists can go home happy because it turned out that, "...the Constitution means what I said Thomas Jefferson thought it meant." Whether you decide the outcome based upon your interpretation of the Constitution or your interpretation of the framers of the Constitution, you still run the risk of voting your beliefs rather than the law. To assert otherwise is just foolish.
When it comes to judicial reasoning most conservatives attempt to form a philosophy that is legitimate within a democratic system. They believe that a judge should not just rule based on what he thinks should happen but have some restraining system that keeps them in place. Some believe in strict construction, construing the language of the law in question by what it actually says. Others, like Scalia, believe in originalism. Originalism is the interpreting a law to mean what those who passed the law thought it meant. Others believe in judicial restraint, which is giving deference to the acts of democratically elected officials.
From his speech it appears that McCain falls into the restraint category. That is probably why he said he wanted judges like Roberts and Alito who do not have well formed philosophies and did not mention Scalia and Thomas who fall squarely in the originalism camp.
No, that's not it. When McCain talks about the judges he'd appoint, he's simply telling the right-wing that he will appoint judges to overturn Roe vs. Wade and make abortion and birth control illegal; that he will appoint judges, like the fascists we have on the supreme court, who will overturn Brown vs. Board of Education and similar rulings, and allow states to reinstitute segregation. He will appoint judges who will hold that it is illegal for the government to regulate business or to mandate a minimum wage or maximum hours per week. This isn't about a judicial philosophy -- that's just b.s. they spread on your muffin. This is about a fascist movement taking over our country, and McCain standing up and saying he's with them.
McCain has been salivating for the presidency for decades. He would absolutely sell out his past work for the job, no doubt.
"Activist judge" = "judge who made a decision I dislike". Nothing less and never, ever anything more. Always has meant that, always will mean that and the self-delusion and wilful stupidity of the right will never change that. It is not, was not and never will be about constructionists against activists, it has only ever been about decisions they like against decisions they don't.
Anyone who has actually studied law knows this is a stupid, selfish and fundementally wrong arguement but some keep making it because they consider honesty and principles far less important than having the law of the land reflect their views.
There is nothing wron with being an activist judge as long as a judge is following the constitution and not his own politics. If a law violates the constitution it should be overturned. The problem comes when a law does not violate the constitution and is overturned anyway. Roe v. Wade for example.
Scalia's interview on 60 minutes is an example of what is really meant by strict constructionism. According to Scalia the founders prohibited cruel and unusual "punishment" of people who had been convicted of crimes but allowed the same conduct to be used by the government on people who the government suspects of having information. Although the authors of the bill of rights prohibited the government from forcing self incrimination they, per Scalia, permitted cruel and unusual conduct to pry loose information (which typically would have to be self incriminating or the interrogee would not have it.). this is the absurd argument that passes for intellectual prowess for the strict constructionists. there has always been a defense of justification available as a defense if you act to avert a significant catastrophe but you have to have been factually correct in your assumptions. Rather than show restraint in discussing such issues Scalia in advance approves the most far reaching extension of government powers i.e. the constitution does not prohibit cruel and unusual acts against people who have never been convicted of a crime only those who have been. Nothing could be more activist than that. Nothing.
Scalia's point is not "absurd" in the least. Part of your problem is that you are mixing up a couple of constitutional points. First, Scalia’s point is that the prohibition against cruel and unusual punishment is a limitation on PUNISHMENT, which is the state sanctioned retribution for a misdeed. Of a court ordered a person to be tortured for some sort of misdeed that would be punishment and Scalia would agree it violates the Constitution. If, on the other hand, some harm would befall a terrorist at the hands of the US military while participating in a terrorist plot against the US that would not be punishment and therefore not constitutional. The point is that torturing a terrorist to get information to fight terrorism is not retribution in nature and therefore is not covered by the Constitution.
You also misconstrue the self incrimination clause of the Constitution. The Constitution does not prohibit coercive questioning, it only prevents the information from being introduced into court. As far as I know, no one is trying to introduce into court transcripts of waterboarding sessions.
It was horrifying to hear Scalia's argument, but to experience your rough attempt to explain his twisted logic on torture is really untenable. Do I understand that you argee that there's nothing wrong with torture unless it's punishment, in which case (and ONLY in which case) it's prohibited by the Constitution? Have you ever heard of "jus cogens"? That’s Latin for "higher law". I completely agree with laocoon -- by refusing to rule in favor of "jus cogens", Scalia ACTED most violently against the spirit of not only the Constitution but of all the statutes and treaties that comprise the law of the land.
That is why originalism fails, b/c it does not address the obvious conflicts it creates. Thus, you are saying someone who is convicted of raping 1,000 six year olds by the Constitution is not allowed to be punished in a cruel and unusual manner, yet someone merely alleged to be a terrorist, whether true or not, could be roasted alive on a spit. Originalists assume that the framers purposely used the word punishment as signifying their intent that you could commit attrocities on a person in government custody depended on your intent in committing the atrocity. Anyone involved in the drafting of law knows that the eventual problem will be situations that had not been foreseen in the law, or intent being garnered out of a statute based upon the particular selection of words. Really, this deals more with Scalia's political views rather than his judicial review, or is it just coincidence that his originalism always seems to come to conclusions which support his political allies?
The more honest approach would be:
We presume people to be innoccent until proven guilty;
We forbid cruel treatment of even those that are found to be guilty;
Thus, all person in custody for whatever reason are protected from cruel and unusual punishment.
sorry the exclusionary rule did not exist until the 20th century. i take it from your defense of Scalia that the government is not restricted in any other way as to what it can do to you so long as it is not doing it to "punish" you for a crime you have been convicted of. I still think it is ABSURD and your defense is acrobatic and deceitful.
Truth is that you have no idea who Mccain will nominate to the Court and how they might or might not rule on issues that may or may not be raised. He's currently trying to curry favor with conservatives who seem a bit reticent to vote for him. His legislative activity on the other demonstrates his willingness to find common ground far more than dictate from an extreme position. It's extremely doubtful that he'll run for a second term, and I doubt he'll be concerned with little more than making his imprint on American history.
Evidently the Supremes are going to need to delete corporate cases from their docket from now on:
The Supreme Court tossed itself off a big case Monday.The court couldn't take up an apartheid dispute involving some of the nation's largest companies because too many of the justices had investments or other ties with those corporate giants.
Corporate offenders- full steam ahead!
These old white men use the same fairy-tales to try to gain control of the whole world and all its riches for themselves. They say, in their churches, that God speaks to them, that only they understand, and God tells them what is right and wrong, so everyone else must do what they say.
For our laws, they say that the old dead men who wrote our constitution speak to them, and tell only them what these old dead men intended. The whole idea of a "strict constructionist" court is exactly the same as the "literal" and "fundamentalist" bible folks.
Both are equally absurd. The constitution excluded women and minorities, just for starters, and that was the original intent. Should we reinstate that as the law of the land? McCain and Scalia would say yes.
What we should do is to read the constitution, try to make sense of it in modern terms, and go with that, instead of letting old white men tell us that they knew the "real" intent. For example, the strict constructionist argue that individuals have the right to "bear" any "arms" they want, which of necessity includes nuclear bombs. Yet sane people can see that we need reasonable restrictions, for the public safety.
McCain is an old man who will allow the whole country to be destroyed in order to become president. The people behind him are evil and their policies are absurd as well as stupid. Obama 08
"Rather, he is simply using a phrase that he clearly doesn't understand..." You nailed it my friend. John McCain is in completely over his head. He doesn't understand the economy, he doesn't the war, he doesn't understand the constitution. John McCain IS Bush 2.0
No, a judge doesn NOT have to glean the meaning of ambiguous language from somewhere other than the Constitution. That is exactly where the intent of the law must be grounded. The spirit of the Constitution can and should be applied in the interpretation of statutes or legal language in every instance. The Constitution is rooted in common-sense and equal representation and the enforcement of contracts.
This is why conservative or "constructionist" justices are critical to the future of this country.
And this is why we need more of them to overturn the insane decisions such as "kelo" and upholding McCain-Feingold.
"No, a judge doesn NOT have to glean the meaning of ambiguous language from somewhere other than the Constitution. "
The Constitution, my friend, does not explain the ambiguous language of a law written in 2008. The law would most likelly contain words that were not even in the English language when the Constitution was framed. You seem to miss the point that a major part of judicial duties has ALWAYS been interpretation of the meaning of the words of a law, and that to do that other sources, a dictionary perhaps, and certainly the decisions of judges in the past, must be used.
You are confusing this task with that of determining the "constitutionality" of the law.
You are also missing the point that conservative judges have been every bit as eager (perhaps more so) to "legislate from the bench" as have liberals. It is their politics that are different.
> You are also missing the point that conservative judges have been every bit as eager (perhaps more so) to "legislate from the bench" as have liberals. It is their politics that are different.
If a court finds for the powers-that-be they are lauded as conservatively interpreting the constitution or the law while a court that goes against the rich and powerful to favor the citizenry is deemed "activist". The right wing likes to twist the English language in an attempt to win by deception arguments that would otherwise be laughable; it's very similar to the "dialectics" practiced by the Soviets to attempt to provide a logical argument for their Communist system.
The Conservative movement seems to think that the ideal American society was reached in the distant path and that the only way to make life better is to return to that mythical golden age. The Progressive movement believes that we can and ought to continually improve our society. Unless one completely swallows the propaganda that is fobbed off as US History in high school its really hard to argue that we need —or even want to—return to some period in our distant past.
The Constitution is not all that difficult to read. Take, for example, the Establishment Clause ("Congress shall make no law respecting an establishment of religion....") -- sounds pretty simple, doesn't it? I take it to mean that the government should stay out of the religion business, but libraries have been written about the meaning of those 10 words alone. Every judge is, by necessity, an activist judge -- t'would seem to me that liberal judges interpret the Constitution to "permit" while conservative judges construe it to "prevent".
The establishment clause means that the government shall not ESTABLISH a religion. You can associate with an institution without having established it. I shop at wall mart, does that mean I established wall mart? The government can associate with religions they just can't form an offical state religion.
99+% of the time there is no need to consider the US constitution in interpreting statutes. It would be activism for the courts to do as you suggest. statutes are interpreted in accord with well established principals many of which existed in English law at the time of our revolution and were assumed as part of the fabric of our laws. Most people who talk about activists as judges do not know what they are talking about. Usually the judge is activist if and only if a result is reached with which one disagrees. the reasoning process is ignored. that in fact is activism. those who complain about activist judges almost always want a specific result reached period and are therefore actually insisting on activism on the bench. just give us the result we want = activism
An activist judge is one who votes to overturn a law that, while constitutional, differs from what the judge thinks should be the outcome. Roe v. Wade is the perfect example. Seven unelected and unaccountable men decided to overturn a law passed by a democratically elected state legislature because they disagreed with it. We went through many years of an out of control court and we are now just starting to come back to rationality and Obama and Clinton what to go back.
Well, the problem with that is that the Constitution doesn't really say that much. Like McCain, you don't really seem to grasp Constructionalist or Originalist thought. Even these two schools use outside materials to shape and justify their decisions, such as the Federalist Papers.
Predicting decisions from sitting SCOTUS Justices is impossible. Predicting decisions from people who haven't even been nominated yet make Tarot card reading look like an exact science. Elections have consequences. Putting up far left candidates to an electorate that is most definitely center right is going to have predictable results.
Even if McCain is elected, there are going to be enough votes in the Senate to prevent whacked out social conservative ideologues like Clarence Thomas and Samuel Alito from getting on the bench. That is if anyone can spot them.
Oh yeah? Look who's already IN the court. I'm a Catholic, but even I can't stomach any more religious conservatives on that court. It's practically a rubber stamp now...if McCain makes it worse, we might as well be living in Iran.
Because they want to follow what the constitution says rather than making it up as they go along? I don't think you have any concept of what you are saying.
I don't see much evidence that the current crop of Senate Democrats will suddenly get the courage to vote against a Roberts or Alito even if they are in the majority.
The success rate for obtaining Senate confirmation of a judicial appointment is pretty nearly the same as the reelection rate for Congressmen. The confirmation process, in my lifetime, is essentially political theater rather than a true vetting process. I would bet on a GOP minority in the Senate being able to block a left-of-center judge over a Democratic majority Senate being able to deny confirmation to a way-right-of-center judge.
By definition isnt the electorate as a whole/by average or mean or median ---- at the Center. how else can you define the center? By your own subjective opinion as to where it belongs?
The fifteenth and nineteenth amendments only speak to the right to vote.
Perhaps it is time that politicians sponsor additional amendments to the U.S. and various state to prohibit ANY governmental action based upon race, gender or religion.
You are about 150 years behind. the civil war amendments prohibit such under color of law which generally means with government (state or federal) involvement.. the exact meaning of the amendments is still being determined on case by case basis which is how statutes are interpreted-- by applying the law stated in general terms to specific facts while often describing the reasoning behind the particular application. After a number of reported applications one is more and more able to define what the statute means and predict its application to other specific situations.
We do have the 14th Amendment.
Probably THE most important consequence of this election will be the appointment of high court justices. If "Hillary's people" really vote for such a dangerous, uninformed, incoherent-but-poisonously-ideological, Trojan-Horse-for-the-Right, empty suit as McCain, they have not the interests of the people at heart, nor their own obvious self-interest, but will be acting on mindnumbingly adolescent petulance to the extreme detriment of all of us for decades to come.
How can they even suggest such a legacy to hand to their children and, indeed, the world?
This is a red herring argument made for 20+ years to coerce people into voting for weak candidates. "If you don't vote for Dukakis, they will overturn Roe v Wade". "Vote for Bush and we will get Roe v Wade overturned". This argument has been polled by both sides and the fear does prompt voters. However, it is not a real issue. Anytime you hear this argument trotted out, you know it means they know they have a weak candidate that can not stand on a positive record, they need to try to install fear to get votes.
The truth of the matter is that this in the time that things could change. If you look at the court the left leaning judges are older. Ginsburg, Breyer etc. Look at the conservatives. Alito, Robert, Scalia, Thomas. Notice anything? They are all young. If there will be an exit, or two or three, in the coming years it will be from left leaning judges. In order to keep a balance we MUST have a Dem in the White House. Another Neo-Con appointing a Supreme Court Justice means years upon years of conservative activism at the highest level of the judiciary. This is something that we simply cannot afford.
That is why regardless of who the Dem nominee is, I will be voting for them. I will, and I hope you will, encourage others to do the same.
Sorry you're buying this used car. The "conservative" supremes also will not overturn Roe v Wade. There are no constitutional grounds. They want to keep it hard to overturn any of their decisions or any prior decisions. They can find new specifics and nudge in a direction, but never throw out a prior decision.
An actual constitutionalist would say the Supremes don't have a horse in the race, that it is up to the states.
You probably also think the Democrat will get us out of Iraq sooner? But, don't get me wrong there are plentiful reasons that McCain should not be elected. Just don't buy the same old tired lines. Don't let them pander to you.
While it is true that Roe v. Wade has been trotted out regularly as a scare tactic, it is no longer a case of crying wolf. If another justice in the mold of Scalia, Thomas, Roberts or Scalito were to ally with the current fascist four, then a judicial dark age would envelope the United States: corporatism and authoritarianism would reign supreme. The only way to truly turn things around is to capture the White House and 60 seats in the Senate so that justices capable of counterbalancing the current near-majority of extremists.
So reversing Roe and letting the elected state legislatures of the country decide the issue is "fascist"? You should really go look that word up.
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