The McCain Judiciary, Part Deux

Everyone but everyone loved McCain's speech on the Judiciary, and I liked it well enough as a base-shorer-upper, as I wrote yesterday. Picking up on the last point I made yesterday, however, let me --while everyone's still looking at the Democrats and I can utter my dyspeptic mutterings in safety-- explain why everything he said was great...and utterly inadequate.

Follow that first link and you'll find scads of sources from Wolf Blitzer to Bill Kristol talking about what a great issue this is for McCain.
  • CNN's Wolf Blitzer: "McCain Is Setting A Bar For How He'd Choose Federal Judges."(CNN's "The Situation Room," 5/6/08)
  • Investor's Business Daily: "McCain This Week Committed Himself To Buttressing The Federal Courts' Integrity As What They Were Meant To Be: Nonpolitical Tribunals, Dedicated To Upholding The Constitution." (Editorial, "Judging McCain," Investor's Business Daily, 5/6/08)
  • Ethics And Public Policy Center Head Ed Whelan: "McCain Has Drawn A Clear Line Between His Support For Judicial Restraint And Obama's Promise To Appoint Liberal Judicial Activists." (Juliet Eilperin, "McCain Sees Roberts, Alito As Examples," The Washington Post's "The Trail" Blog, 5/6/08)
  • Weekly Standard's Bill Kristol: "Obama . . . Has Not Been Just A Normal Democrat But The Left Wing Of The Democratic Party." KRISTOL: "A lot of moderate Democrats are unhappy that the courts make fundamental decisions on social policy. A majority of Democrats in the United States Senator voted to confirm John Roberts as Chief Justice of the United States. It is a very good issue to point out that Obama, on many issues, has not been just a normal Democrat but the left wing of the Democratic Party." (Fox News' "Special Report," 5/6/08)

Fantastic, I approve. McCain will deliberate to choose the best judges and justices. Then the Senate will filibuster his nominees. Then what? In his speech he told us:
the only remedy available to any of us is to find, nominate, and confirm better judges.
McCain is supposed to be great friends with Fred Thompson, and old Fred gave us a hint early on that he'd given some thought to presidential powers and how to push back against the courts. Remember when he (FT) said this to the Values Voters?
Judge Roberts proved that quality will win out in the end. And it brought home to me again the necessity, I think, for a president of the United States in the future, if he is confronted with an increasingly partisan bitter reaction to good people who are nominated for this position, and they reject that nomination, you ought to send another one up just like it and have the fight all over again. (Applause.) That's a fight we can have with the American people--before the American people all day long. And we will win in the end if we are persistent and we stay with it.
So maybe McCain will know what to do when his political opponents don't have the same level of nobility he does. But judging just by what he said --the "only" solution to our crisis is good judges-- I'm not certain McCain (or any of that long list of great lawyers advising him) understands what the problem is. (Hint: it isn't "bad judges.")

In fact, I've been exchanging email with a friend who says --plausibly-- that McCain's speech is logically incoherent. He starts promisingly with a discussion of the Founders and the separation of powers; but then his "only" solution ("better judges") suggests he doesn't understand what the separation of powers is for. If we could rely on "good" Presidents, "good" Congressmen and "good" judges, we wouldn't need separation of powers. The separation is so when one branch acts abusively, the other two branches separately or together act to put the abusive branch in its place. Our Presidents & Congress, irrespective of party, have completely forgotten they can do this. And as far as I can tell every Constitutional Lawyer has forgotten it too. Con lawyers think always about how to manipulate arguments to get judges to rule narrowly in their favor. They seem to me hardly ever to think about the Constitution at all. And I mean even the good guys, my allies, "our" side. My friend writes:

Think as a Justice thinks here: he sees no threat at all to his constant expansion of powers, so he legislates instead of judging, knowing that Congress will do nothing to stop him; and he administers the law across the country, knowing that the President (our Administrator-in-Chief) will do nothing more than complain. This is plain dullness on the part of the President, who at any time can recapture his own power to administer the law simply by saying he will not enforce a court decision that is not constitutional, indeed he cannot enforce it without violating his own oath. A President who tamely submits to an unconstitutional court decision is as a matter of fact impeachable on the grounds of maladministration of the law.

Think Lincoln & Dred Scott. Think FDR & Congress' long battle with the courts.

Let me ask a further question about McCain's claim --and I'm not picking on him, this is what we Conservatives always say-- that
Sometimes the expressed will of the voters is disregarded by federal judges.
Well, right. But does that mean we don't accept the principle of judicial review? What is the overturning of any law ever but the disregarding of the express will of voters? I think I know what McCain means and I agree with him. My point is that the Conservative case against judicial usurpation is quite weak, hardly thought through, and amounts mostly to whining if the only solution anyone can think of is to declare that judges must be "good." (And teachers must be good. And businessmen. And journalists.)

As for this being a good political issue. I like it. Suzette Kelo will like it. But if you ask the majority of the American people whether they wish for their judges to be respectful of "the will of the voters" or "compassionate," what do you suppose they'll choose? How would you choose, knowing that judges are there largely to protect minority rights? As long as Conservatives are content to whine about overstepping judges, but incapable of thinking about how to push back at them, the issue's a loser for us. My email friend is depressed.
the speech speaks badly for what a Mac Administration will be like. It shows that he has not thought about what it means for him to live in the WH instead of Capitol Hill. Faced with a Dem Congress, he will be a nullity.
I'm not ready to assume the worst or to see capitulation from one speech. But I sure hope on this issue Mac talks more to his buddy Fred Thompson than to any con law types.

Update: See, no one on our side has any real judicial solution. Here's my beloved VDH with advice for Republicans. Agree with every word, but all he has to say about the judiciary is:
We need constitutionalists, because they alone follow the rules of the legislative branch and what is written in the Constitution, do not turn rarified, laboratory theory into the law that millions must suffer under, and bring respect to the judiciary sorely damaged by aristocratic elitists on the bench.
And when the nominees are filibustered? Or when they "grow in office"? There's an ad right next to the column for a book I've not read: The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government And Eroded Freedom. Not having read it, I obviously don't know what remedies might be proposed there, but the jacket blurb in the ad bemoans the "sad truth of the American judiciary." Sad truth, bah. It's a political problem requiring a political solution, and anything else is just b----ing and whining. Just try raising the point with any constitutional lawyer, however. Can't wrap their minds around it. At all.

Update: Thanks for the link, Prof. K. He says McCain shouldn't telegraph his punches. Agreed.
2nd Update. Prof. K. also comments on the Obama campaign's response to McCain:
The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts 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.
And there you have it: "will of the people" versus "compassion," as we said above. I promise you "compassion" will win at the voting booth if Conservatives don't advance a better argument. Everyone --even The Man-- conceives of himself as the little guy up against The Man.

Do read all of The Professor's post. Obama is the most radically pro-abortion candidate for President in the nation's history, and Roe is the center of his notion of what constitutes "rights."