by James Oliphant
John McCain's blueprint for his judicial philosophy, which he delivered today in North Carolina, contained just about everything it needed to placate conservatives who want to maintain momentum on the legal revolution begun more than 20 years ago under President Reagan.
McCain's speech at Wake Forest University was filled with contemptuous attacks on the various tools used by judges to expand the jurisprudential universe within which cases are decided, especially by the Supreme Court.
He appeared to take a shot at Justice John John Paul Stevens, who recently articulated his belief that capital punishment in America had outlived its usefulness. McCain blasted judges who rendered rulings based on their "own experience."
In an opaque criticism of Justice Anthony Kennedy and other more liberal justices on the court, he ripped the use of international law and the utilization of judicial norms that lie outside American legal precedent, suggesting that the 2005 case in which the Supreme Court decarled the death penalty as applied to juveniles unconstitutional was wrongly decided.
He mocked the phrase that court used in rendering that decision, society's "evolving standards of decency." By extension, McCain was also criticizing the court's 2003 ruling throwing out the death penalty for the mentally disabled.
He referenced the high court's much-criticized 2005 decision involving Connecticut resident Susette Kelo, who lost her eminent domain suit when a majority of the justices ruled that the city had a valid reason for taking her property in order to benefit a private developer. That case sparked outrage among property-rights activists.
If those interested in bipartisanship and a mainstream approach were looking for encouragement, they could take heart in McCain speaking of his Senate votes to confirm Clinton high court appointees Stephen Breyer and Ruth Bader Ginsburg.
McCain also cited his membership in the so-called "Gang of 14" that ensured the confirmation of several judicial nominees but thwarted an attempt by Republicans in the Senate to eliminate the filibuster for judges.
It is also telling that McCain chose to mention Justices John Roberts, Samuel Alito and William Rehnquist as his ideal judges, and not, for example, Justices Antonin Scalia and Clarence Thomas. It suggests that McCain, at heart, is like Rehnquist and Roberts, a believer in the court injecting itself into controversies in as limited way as possible rather than using the courts more actively to roll back decades of the kinds of rulings by more liberal court that McCain complained about.
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Comments
You guys need to post this. Please, please, please get Oliphant a copy editor. It's bad enough that you let him claim that something other than legal precedent should decide case law, but allowing his pathetic grammar and word usage is just an insult to our profession.
"contained just about everything it needed to but to placate conservatives"
"used by judges to expand the jurisprudential universe with which case are decided"
Mistakes like these show that Oliphant is not the titan of words and thought that he claims to be when he makes contemptuous attacks on McCain, but rather a very little, little man who couldn't even bother to look over his own copy before posting it.
Posted by: Jefff | May 6, 2008 11:56 AM
McCain doesn't like "the utilization of judicial norms that lie outside American legal precedent"
like deciding presidential elections?
Anyone who believes that the Roberts court is not injecting itself into controversies has not read the Ledbetter decision.
Posted by: athena | May 6, 2008 12:00 PM
but allowing his pathetic grammar and word usage is just an insult to our profession.
Posted by: Jefff | May 6, 2008 11:56 AM
Way to get to the heart of the matter. Are you a journalist or a judge?
Posted by: bill r. | May 6, 2008 12:02 PM
Journalist, Bill. Gore was the one who didn't want all the votes counted in the Bush v. Gore case. Gore brought it into the courts, not Bush.
Posted by: Jeff | May 6, 2008 12:24 PM
* * * * *
Anyone who believes that the Roberts court is not injecting itself into controversies has not read the Ledbetter decision.
Posted by: athena | May 6, 2008 12:00 PM
Okay, athena, why don't you tell us what was wrong with the Ledbetter decision. Was it wrongly decided because she lost or because the Court didn't rewrite the law or overturn the clearly established precedent it relied upon to uphold the 11th Circuit?
Posted by: John W. | May 6, 2008 12:45 PM
Actually, " Jeff " it was that brilliant strategist and hack, Jim Baker who was calling the Republican's shots, knowing they had an ace up their sleeve, a Republican stacked U.S. Supreme Court. All of your revisionist nonsense will not legitimize the violation of State's Rights, of which the Republicans were supposed to be such champions!! What hypocracy!!!
SUPPORT OUR TROOPS, BRING THEM HOME, ALIVE. NOW.
Posted by: Don Fitzgerald, Chicago | May 6, 2008 12:50 PM
Oh, and athena, Bush v. Gore was decided on the basis of the Equal Protection clause and the consequent One-Man-One-Vote rationale established in cases from the Warren Court era. What is so "outside American legal precedent" about those?
Posted by: John W. | May 6, 2008 12:50 PM
The kinds of "hands off" judges that McCain and other members of the GOP would fill the court with are the same type of "hands off" judges that would not have overturned Plessy v. Ferguson, or overturned slavery, or any other social "norm" we wonce accepted, times change and judicial thinking needs to change, or the next thing you know, the Supreme Court will begin admitting "Spectral Evidence" and maybe we could hang a couple of "witches" in keeping in line with our "conservative" beliefs.
Posted by: Buckley | May 6, 2008 2:20 PM
Jim Baker was calling the shots? So what? Warren Christopher was calling the shots for the democrats! It Neither former SecState's participation changes the fact that Gore went to the courts first. The Gore campaign filed a lawsuit seeking a selective recount in only three (3) counties, a recount that would have been the opposite of what Florida's own election rules allow for recounts. If Fat Albert hadn't done that and attempted to violate the equal protection clause, then the case never would've reached the SCOTUS.
Posted by: Jeff | May 6, 2008 2:22 PM
Talk is cheap, present the facts. You can't, Baker went to the Supreme Court. Former Vice-President Gore knew better than to go to a Republican stacked Supreme Court. He knew he didn't have a chance! Show us the beef!! Talk is cheap!!
SUPPORT OIUR TROOPS, BRING THEM HOME, ALIVE. NOW.
Posted by: Don Fitzgerald, Chicago | May 6, 2008 2:37 PM
Buckley, there IS a mechanism to recognize societal change that has worked for the two centuries of this country's existence. It not only freed the slaves and gave blacks and women the right to vote but also ended the ridiculous social experiment that was prohibition. It's called an amendment to the constitution. Maybe if we used what the founding fathers gave us we wouldn't need judges to tell us little people what is we want. Let's face it, judges aren't omniscient and all-knowing, despite what John Paul Stevens might've told you.
Posted by: Jeff | May 6, 2008 2:44 PM
Check this link out, if you are interested in what happened, otherwise, I suggest you take your nonsense and peddle it some where else.
SUPPORT OUR TROOPS, BRING THEM HOME, ALIVE. NOW.http://en.wikipedia.org/wiki/Bush_v._Gore
Posted by: Don Fitzgerald, Chicago | May 6, 2008 2:45 PM
Don, anyone can edit wikipedia entries. If you're going to say that your link is "what happened" then I'd suggest posting a link that doesn't have a big disclaimed on the front of it that says "this article has been nominated to be checked for its neutrality."
More proof that all conservatives need to do to win elections is to just let liberals be themselves.
Posted by: Jeff | May 6, 2008 2:59 PM
I see you aren't interested in what actually happened, or I wouldn't have had to supply you with a link. If you were right you wold have had links coming out of your ears, but we know you are never right. Conitnue on with your drivel!!
SUPPORT OUR TROOPS, BRING THEM HOME, ALIVE. NOW.
Posted by: Don Fitzgerald, Chicago | May 6, 2008 3:15 PM
Don, I've read both the Florida Supreme Court and SCOTUS judgements, I KNOW what happened. I don't need you or a wikipedia entry that's been marked for editing because of its bias to tell me, thank you very much.
If you insist on links, here's one you should've read before you started this, the Supreme Court's per curiam opinion: http://www.law.cornell.edu/supct/html/00-949.ZPC.html
You're not very good at this argument thing, are you?
Posted by: Jeff | May 6, 2008 4:09 PM
Even though McCain was not my initial choice (Fred was) today's speech demonstrated how crucial the upcoming election is. If the liberal elite is successful, the state of the American legal institutions will be drasticly different froom what we have today. With a left-wing Congress rubber-stamping Barak's or Hillary's socialist nominees the country would be in deep do-do. Illegal aliens would be bestowed all the rights of citizens, capital punishment would be abolished, except for those innocent unborn babies in the abortion industry. Decisions like Kelo will become more common and and private property rights, a longstanding tradition in America will be gone forever. The choice is clear, John McCain's vision for judges or the insanity of a left-wing dominated judicary. I pray the voters don't make a dangerous mistake.
Posted by: cuzinvinny | May 6, 2008 5:50 PM