McCain's Justice

John McCain's May 6 statement on the role of judges in our constitutional system might very well qualify as one of the most ignorant statements ever made by a presidential candidate on this most important subject.

At one point, McCain complained that sitting judges and justices systematically "abuse" the federal judicial power by issuing "rulings and opinions on policy questions that should be decided democratically." McCain is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting Supreme Court Justices and twelve of the last fourteen Supreme Court Justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."

McCain also seems stunningly unaware that the Justices he simplistically lauds as "judicial passivists" are nothing of the sort. Justices like Rehnquist, Scalia, and Thomas, and more recently Roberts and Alito, have consistently voted to invalidate laws at a record clip, most notably holding unconstitutional a broad range of laws regulating commercial advertising, limiting corporate campaign expenditures, and authorizing affirmative action programs to enhance educational diversity -- to say nothing of Bush v. Gore. This is not strict construction and it is not judicial restraint. It is conservative activism gone wild -- in judicial robes. McCain just doesn't understand.

Even worse, McCain mocks the lifetime tenure of federal judges and assails what he scorns as liberal "judicial activism." Interestingly, McCain confidently invokes the framers of the Constitution as authority for his claim that what we need in this nation are more judges who will exercise "self-restraint." But after chiding Barack Obama, who actually knows something about constitutional law, McCain betrays his complete lack of comprehension of the Unites States Constitution and of the goals and concerns of those who crafted it.

A fundamental challenge facing the Framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."

Early in the constitutional process, Madison expressed skepticism about the value of a Bill of Rights. As a practical matter, he simply did not see how a Bill of Rights could "provide any check on the passions and interests of the popular majorities." Indeed, "experience teaches the inefficacy of a bill of rights on those occasions when its control is most needed," for "overbearing majorities" tend simply to ignore these "parchment barriers." In a governmental system in which the majority could have its way, Madison asked Jefferson, "What use . . . can a bill of rights serve?"

In a letter back to Madison, Jefferson (who was in Paris at the time) extolled the role courts could play in enforcing a Bill of Rights. Jefferson urged Madison to consider "the legal check" which the Constitution "puts into the hands of the judiciary," a "body, which if rendered independent . . . merits great confidence for their learning and integrity."

Shortly thereafter, when Madison presented the Bill of Rights to the first Congress, he echoed Jefferson's argument, contending that if these rights are "incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights."

The "solution" to the seemingly insoluble dilemma of how to enforce the guarantees of the Bill of Rights against the "overbearing majorities" that would inevitably control the legislative and executive branches was thus, in part, the third branch - the judiciary, which could serve as "an impenetrable bulwark" against majoritarian encroachments on the fundamental liberties of political, social, religious, economic, and other minorities.

Unlike John McCain, the framers fully understood that lifetime tenure was not a mere perk of office, but essential condition for the American constitutional system to operate. The hope was that life tenure would insulate judges from the need to curry favor with the prevailing political majority, and thus free them to act on principle. As John Adams affirmed, for judges to be able to undertake this solemn responsibility, they must be firmly independent of the other branches of government and must hold "their positions by a permanent tenure in no way dependent upon the will and pleasure of the executive." Without that independence, Adams added, it would be absurd "to look for strict impartiality and a pure administration of justice, to expect that power should be confined within its legal limits, and right and justice done." A critical insight of the American constitutional system was the recognition that judges needed independence not only from the executive and the Congress, but, in Madison's words, from "the people themselves."

During the ratification debates, Alexander Hamilton strongly endorsed judicial review as "obvious and uncontroversial." Hamilton argued that constitutional limits could "be preserved in practice no other way than through the medium of the courts of justice," and he maintained that "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." The "independence of the judges," he reasoned, is "requisite to guard the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men . . . sometimes disseminate among the people themselves." Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are "instigated by the major voice of the community."

The truest aspirations of American constitutionalism are embodied in the decisions of the Supreme in cases like Brown v. Board of Education (declaring racial segregation unconstitutional), Gideon v. Wainwright (guaranteeing a person accused of crime the right to counsel), Reynolds v. Sims (insisting on one person/one vote), Harper v. Virginia Board of Elections (prohibiting the poll tax), and Frontiero v. Richardson (protecting women against unconstitutional discrimination). The framers understood that our nation needs judges and justices who protect the rights of the minorities, the oppressed, and the downtrodden, not judges and justices who abuse the Constitution in order to protect the interests of commercial advertisers and corporate political contributors. To paraphrase John McCain, "the moral authority of our judiciary depends" not on false promises of "judicial restraint," but on real promises of judicial wisdom - the sort of wisdom that Jefferson, Madison, Adams, and Hamilton banked on when they drafted our Constitution.

Comments

[MetryJen]

This article is an eye-opener as far as Republican appointees, and an even better reminder of where the judiciary stands in our system of checks and balances. Thanks!

[escapee]

I don't think McSame will be getting better with age...

[jwod]

As a 70 year old, I'm not a believer that age automatically impairs one's logic, thought processes or ability to act decisively in the best interests of the governed. So many younger examples of impairment clearly establish that age is not the sole material cause therefore. But here, sad to say, I think McCain is a wine being sold well past its prime.

[CocteausTwin]

I agree so whole heartedly that age is not the "metric" by which one should be judged. It should solely be based on one's current faculties.

[MSF31538]

McCain certainly does not fit within the Clinton defintion of an "elitist". He is one dumb fighter pilot. Five years in solitary and torture crimped his thinking style, which he never had to begin with. He is all crust without filling, al la George W. Bush.

McCain doesn't have much a memory. Five years of torture and imprisonment will do that to you. Everything is "Chinatown" to him. He simply intentionally or ignorantly choses to lie about his past. One who lies about his past is bound to lie in his future. Have we not heard enough lies from the mindless, stubborn misfit in the White House these 8 years?

Lying heros do not make good presidents. He admittedly does not have a clue about economic matters. Do you wish to elect a new President who is "clueless" when we are on the cusp of a depression due to "greed" and lack of self sacrifice? Ditto for Clinton, but she is no hero. All those years with Bill and the Arkansas Hogs converted a radical liberal to a hatchet man.

Martin S. Friedlander, Esq.
www.freedompost.typepad.com

[PioneerKing]

Martin:

Query this: McCain was against torture before he was for torture.
When McCain was against torture he stated "a person who is tortured will eventually tell his captors any to end the torture," as a result "torture does not yield creditable and reliable informatio­n."
Now that McCain is for torture because as McCain now says "torture will yield vital intelligence," "in our fight against global jihadisim, and those that want to do us harm,” would it be safe to say that McCain, when tortured, did in fact tell the truth when he denounced America and the Constitution and would one be safe to assume that McCain did in fact give his tortures valuable military intelligence?

Just wondering what your thoughts on the matter are.

[hopelessobama]

once again liberals compare unlike things, likening being splashed with water in git'mo to vietnamese torture camps. unreal.

[hopelessobama]

it is clear that years and years of drug abuse from b. hussein obama have destroyed his capacity for rational thought. as the cocaine rotted away his brain, obama grew to believe as rev. wright believes, that israel is a dirty word, that hamas is a noble group of freedom fighters, and that 9/11 was deserved. perhaps obama should submit to weekly drug testing to confirm that the damage done to his mind by years of horrid drug abuse has at least been halted. his comparing wright to his own grandmother, only to then fumble and denounce him weeks later seems to indicate that his reckless drug use continues.

[HST]

hopelessobama -wow such a fact filled post. You know Obama's brain and what he secretly believes. Your insight is only rivaled by that intellectual giant George w. Bush.

Got Hate? Yes you have.

[ScroogeandMarleyLLC]

MSF31538, I didn't think that one could get a law degree as a prize in a box of Cracker Jacks, but it appears you managed to. Who pumped in all this misinformation about McCain into your head, and why have you readily believed it?

Please enlighten us.

[peterg76]

You would think that McCain wouldn't criticize the questionable excesses in the judicial system as they seem to be working in his favour so far. But he does have a point, in that when he flip-flops on his policy positions, it will take more than a rubber-stamp Soviet-style Congress to change the law back.

[hawkeye58]

McBush will probably just change his position on this like everything else, or simply deny he said it.

http://www.youtube.com/watch?v=Q4l4DKdt4RQ

[elbzee]

vigdor wrote: "accountability, upon which a democracy is heavily dependent. " and it really caught my attention. My rage over this administration has a great deal to do with accountability. Like, how da chimp was going to hold the Plame "leakers" (WHOEVER they were) accountable. Like the accountability Brownie was held to. Or, the accountability for those responsible for those mysteriously fired federal prosecutors? Or, the grand daddy of them all, HOW HAS THE CHIMPANZEE BEEN HELD ACCOUNTABLE FOR LYING THE UNITED STATES OF AMERICA INTO A WAR AGAINST ANOTHER SOVEREIGN NATION?

You're right vigdor, a democracy is heavily dependent on accountability. That's why we don't have one any more. Damn, I sure miss it!

[wmfor]

In Bush's immortal words (without the ' t ' ), "The accountability moment has passed." Such a great Christian, such a great master of theology.

[JerryinATL]

what has bush to do with any of this? I am constently amazed of the irrational lines of thinking and name calling from liberals.

You know, a sign of the week minded, is to call another a name.

[Chavez08]

"most ignorant statements ever made by a presidential candidate"

When you're dealing with a psychopathic cult of bible-thumpers (700 Club, etc) that thrive on hate, violence, ignorance, intolerance (and pedophilia?), you need statements like those to bait them.

[NJYankee]

No system is perfect. The question is what is a wise outcome. The world is not white or black. It has shades of grey although many people seem to be blind to the fact. The point that made me think is that much is said of the courts, a lot of it bad...by republicans complaining of judges that legislate from the bench...mo­st were appointed by republican­s...maybe its time for democrats to appoint the judges...I guess eventually they'll complain of them being to "letter of the law"!

[JerryinATL]

Legislating from the bench comes from the liberal judges, no matter who appointed them. I would love the dems to appoint judges as long as they were conservative.

[TankerRat]

Honest to God. You people would bitch if you got hung with a new rope.Truth be known none of the current candidates gives one flying rats ass about your so-called rights. Not Billary, not McCain, and not Obama. It's all about POWER . Until you demand better you'll get what you deserve which is shit and shoved in it.

Have a nice day.

And yes, I'm being snarky as well.

[ReElectNoOne]

While I agree that the Supreme Court must be insulated by life time positions, I am not sure I approve of the method by which they are appointed in the first place. As it stands now presidents openly seek appointees who support their political agendas.

Who is to say what goes on behind closed doors when it is time to nominate a justice? What promises are given "under the table" to a president in exchange for the actual nomination? Not promises of a specific nature because no one knows in advance what cases may come up or when, but promises with regard to certain principles based in a particular party's "agenda" such as the republican penchant for promoting big business interests over protecting the constitution. If a president goes shopping for a nominee I am sure these are on his list and we all have to live with these hand-picked judges until they retire or die off.

I would rather see a non-partisan nominating committee made up of persons nominated to that committee by both the White House and both houses of congress ( each party ) and one nominated by an existing member of the Supreme Court. An uneven number to prevent deadlocks. The committee would select the nominees and the Senate hold the typical public hearings to approve. Minutes of the process would be public record as would the criteria for nomination.

[paixa3]

I would much rather see them in a national election. Of course, I come from a place where we elect ALL federal judges and our supreme court have one 9 year term and no relection. We also vote directly on referendums.

The supreme court for life, appointed by politicians sucks.

[hippynanainblingland]

ReElectNoOne and paixa3: Your suggestions are but steps in the right direction, but not necessarily yet the best way. I think the public should have a say in the nomination (of judges) process, and where is it written that judges need necessarily have to have practiced law?

There ought to be a national list of Venerables, people whom others implicitly trust to make wise decisions after being presented with relevant facts, from which we, the people, represented properly in Congresses, national and state, can choose. I like ReElectNoOne's ideas for making such choices, and paixa3's idea that there should be term limits to such an office.

It goes without saying that politics should play no part in making such decisions.­.. and yes, judges should be accountable, and suffer the consequences of bad decisions by being subject to impeachment.

[drblack]

Judges appointed by republicans have been actively promoting and protecting Big Money interests over the rights of individual Americans.

[Kundera]

Souter?

[PerryWhite]

I found it curious that you did not mention Marbury v. Madison, the case in which the Supreme Court created for itself the power of judicial review which the founders had neglected to include in the Constitution.

[mzmadmike]

Being an immigrant, I guess I misunderstood all those citizenship classes I sat through. I thought that speech about elections and candidates was the whole purpose of the First Amendment, and advertising was free speech, too. Apparently, we have free speech, as long as it's free speech neolibs approve of.

And I agree that Bush v Gore was a disgraceful display of partisanship on the part of four Dem appointed judges. They should have voted with the facts, not their party.

The sad thing is, despite the obscene bias in this article, I agree McCain is clueless on the subject, or, more probably, deliberately elitist and scornful of it. We had a previous president as scornful of the Courts, who attempted to pack SCOTUS with 6 extra Justices to rubberstamp his fascism. Anyone remember FDR, liberal icon and manager of the American concentration camps?

[Imhotep]

Last in his class in high school and last in his class at Annapolis, does not a genius make. Peace

[bfraser55]

I agree with you and who would expect him(McBush) to have even seen the Constitution or The Bill Of Rights. He couldn't possibly know their meanings. Republicans haven't paid any attention to the Constitution in decades. They only mention it when they think someone might be watching.

[wavydavy]

Being an immigrant, you are apparently unaware of facts and reality in America.

What is "free speech neolibs approve of"? What is a "neolib" (besides a perjorative term for someone you disagree with)? How and by whom has any other speech been restricted? What makes advertising "free speech" in your world?

Bush v. Gore was a disgraceful display of judicial "thinking" that was twisted to deliver the desired result of the five Republicans. It had little or nothing to do with actual facts, was directly contrary to the alleged "states' rights" views of Republicans and conservatives, and directly blocked an active and ongoing recount (talk about your judicial activism!). The "logic" behind the decision was fundamentally that the recount had to stop so the public didn't think Bush hadn't won (which, of course, he hadn't).

And your last paragraph agrees with the premise of the article and then tosses in a red herring about your hatred for FDR. What, exactly, does anything FDR said or done, which you have grossly misrepresnted (ever hear of Godwin's Law?), have to do with the ignorance and cluelessness of McCain?

[Sciguy]

One need not hate FDR to remember that he was the one who tried to pack the Court with extra Justices who would favour his point of view. He also was the one who created concentration camps for Japanese Americans during WWII. FDR, the New Deal guy, did a lot of good things. But - he also did some things (like the camps and trying to pack the Court) which were not so good. These facts are easy to find (try Wikipedia or any other half-decent source on the Net).

The point is that even some presidents who are remembered fondly for their good works did some things that we now look at with horror. The bad things done by good presidents are as bad as the bad things done by bad presidents.

Power corrupts, and absolute power corrupts absolutely. In a way, elections should all be tagged with "caveat emptor" - let the buyer beware. Judges hold our safety and our lives in their decisions. We must be careful that they are as free as possible from undue influences ("undue" = "not law-related"). It may not be such a great idea to elect judges, but it's also not such a great idea to have them all appointed (by the elected but evil Other Side), either, since both ways of making judges could create conflicts of interest. Federal judges, appointed but confirmed by Congress, with lifetime terms (no more campaigning!), helps keep them from succumbing to those undue influences.

[aht772e]

mzmadmike,
just for your future knowledge, in the case of Bush V Gore, there were only 2 justices on the supremem court that were appointed by democrats, the other SEVEN were appointed by republicans. ANd if the case were decided so justly, why did the court make it a written point to announce that the decision was non-precedential, and thus could not be used as argument in any other court case, ONLY THAT ONE SINGLE CASE!

[paixa3]

No, you are incorrect about eh Bush versus Gore case. IT should have NEVER been allowed.

The supreme court has NO DAMN BUSINESS getting involved in ELECTIONS. Geezuzz.

[DanBest]

Um, no. advertising is not protected speech. Commercial dissemination of information is not considered free speech ... yet. If advertising were free speech a company could blatantly lie and then turn around and claim they are exempt from prosecution because it is protected free speech.

"Bush v Gore was a disgraceful display of partisanship on the part of four Dem appointed judges."

above: "the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting Supreme Court Justices and twelve of the last fourteen Supreme Court Justices were appointed by Republican­s."

Did you read this post?

Okay, what were the facts? The supreme court (a court known to support the concept of state's rights) stopped the mandatory recount of all Florida counties, a mandatory recount triggered by the closeness of the election and the fact that Gore didn't concede. The state supreme court ordered the recount to continue, until the supreme court brought a halt to the recount and turned its back on its own notion of state's rights. The supreme court then issued a statement that this case would not be construed as setting a precedent for further supreme court mischeif in the realm of state's rights. If you were even remotely honest and knew what this case was about, you would be appalled as a conservative that SCOTUS would backtrack on the issue of state's rights simply to hand the presidency to their annointed candidate.

[mgloraine]

Lifetime tenure is a problem when we end up with judges who want to destroy our constitution and obliterate human rights in favor of corporate ownership. This is the situation we have RIGHT NOW. The present "Supreme Court" has been loaded up with anti-American, anti-Constitution, corporate stooges whom we are condemned to suffer until they each die of old age. What a pathetic ending for our constitutional democracy: being supplanted by a "divine-right" plutocracy wherein the interests of corporations and the inheritors of wealth overrule any last vestige of human rights which the non-wealthy and non-white used to think was protected by our Constitution.

We need terms limits for ALL federal judges, most importantly Supreme Court Justices. They should be seated for a total of eight years and ONE TIME ONLY. That would avoid the issue of judges pandering for re-appointment, and, more importantly, allow for a more contemporary, less geriatric judiciary WITHOUT a generation-long stranglehold on the Constitution.

Impeachment of Justice Roberts and the other paid Republican yes-men is not really an option, since they are not openly criminal, just obviously anti-Constitution, anti-freedom, anti-human-rights, just like their corporate sponsors. The only realistic way to get rid of these bozos is to place a time limit on their constitutional sabotage, so that perhaps our children and grandchildren might still be able to enjoy some wisp of freedom and opportunity without being enslaved by corporate fascism FOR ALL TIME.

[jeffhersh]

While I agree that many sitting justices are anti-freedom and anti-human rights, I strongly disagree with your suggestion of terms limits. An independent judiciary requires judges who are free from political pressure, and if they are not guaranteed life as a judge or justice, then they will necessarily have to play politics during their tenure on the bench.

Also, if judges are only appointed for eight years, they will generally mirror the majority political ideology of the elected officials, negative much of the checks and balances. Better to have justices appointed several Presidents ago to provide deference to precedent, and independence from the current powers that be.

That we have some bad justices today reflects the failure of the Senate to exercise its responsibility to provide advice and consent properly. Democrats should have filibustered any extreme right-wing nominee until the President nominated a jurist who respected the judiciary's role is to enforce individual liberties and to protect the weak from being trampled by the strong.

[Sciguy]

Good points, but lifetime tenure is wonderful when it protects judges with "our" point of view. As Mr. Stone said, the real problem is indeed us (Americans). We elect bozos who appoint bozos, and then we complain that the bozos are doing what we they said they'd do.

Dubya doesn't care much for the Constitution, so he appointed judges and Justices who are also not keen on it. We (Americans, not HuffPo readers) elected Bush, and now we're getting what we paid for.

[Uselessboy]

Actually the framers Constitutionally protected the half dozen owners of access to 90% of mainstream Americans from any obligation to remind voters of your so-called facts.

--Or to present them with factual, intelligent discussion of any other issues.

[writerjohnny]

Maybe Uselessboy could state the any actual text of the framers that make his point and maybe he could point out which of Mr. Stone's facts are "so-called".