Sen. McCain & the Judiciary
May 7th, 2008 at 12:31am Geoff
Second only to the role of commander-in-chief, a President’s most solemn and consequential function is to appoint judges to the federal judiciary. Once appointed these jurists serve for life, kept accountable only by the substance of their own jurisprudence and the dictates of their conscience. From behind their august bench it is entirely within their power to willfully manipulate the laws and the Constitution of the United States in all manner of ways which their textual import does not bear.
If privileged to serve as our 44th President, Sens. Clinton and Obama have made it all too clear that this is exactly the type of judge they will appoint to the bench and the Supreme Court. Assuming awesome powers they do not rightfully possess, these judges would continue the federal judiciary’s steady trespass into the provinces and functions of the elected branches of the federal, state, and municipal governments that has been problematic for the past half-century. These are judges who will interpret the Constitution as entirely malleable to the dictates, caprices, and “evolving standards of decency” of themselves and their colleagues.
This is not acceptable. The province of the federal judiciary is to interpret and apply the text of the laws and Constitution of the United States in accordance with the import they carried when they were originally adopted, not to refashion them in a manner they deem appropriate, which is always inappropriate. In a regime based upon popular consent, judicial adventures into the realm of the political branches are intolerable and an absolute anathema to democracy. As President Lincoln so ably put it in his first inaugural, “the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
In his speech on the federal judiciary today Sen. McCain recognized this, pledging to
look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist — jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.
Let this sentiment not be once uttered in today’s speech and never again in the campaign. I would urge the senator return to it again and again, creating a clear distinction and choice for the voter between his opponent and himself. He ought to reiterate that whether you are conservative or liberal, those issues of the greatest significance to the republic must be decided the correct way through the legal and Constitutional political processes that have served us as a people throughout our history, whether you agree with the ultimate results or not. The federal judiciary has its place in our Constitutional republic, it should remain within that. This is only achieved by appointing the right type of judges to the bench, the type of judges Sen. McCain now promises to appoint as President.
Entry Filed under: Uncategorized
8 Comments Add your own
1. Joe | May 7th, 2008 at 1:33 pm
He ought to reiterate that whether you are conservative or liberal, those issues of the greatest significance to the republic must be decided the correct way through the legal and Constitutional political processes that have served us as a people throughout our history, whether you agree with the ultimate results or not.
That last bit is the most important part and EVERYONE should follow that. Unfortunately those judges that so many people call “activist liberal judges” are often following the law, the name-callers just don’t like the results.
It happens over and over and over again. They are only “bad activist judges” if they don’t follow the Conservative point of view. It doesn’t matter who actually appointed them.
2. Geoff | May 7th, 2008 at 8:31 pm
That’s patently false, Joe. I don’t like the term “activist judge” (there is nothing wrong with a judge actively doing WHAT THEY ARE SUPPOSED TO) but it is those types who have been manipulating, distorting, and outright disregarding the text of the Constitution to fit their predilections. That’s why we hear “evolving standards of decency” to justify decisions which change the Constitution’s meaning on topics such as abortion, the death penalty, etc.
3. Joe | May 7th, 2008 at 9:07 pm
Geoff,
Those saying current judges are not “Constitutionalist” weren’t ticked off that the judges didn’t follow the Constitution in the Indiana voting id case, were they?
Although it clearly amounts to a voting tax which is unconstitutional.
To me “activist judges” (I will use that because those on the right use it endlessly although I do applaud you for not using it) can go both ways. People shouldn’t call them “activist” just because they don’t agree with the decision.
So hey… I do agree with you on that.
4. Geoff | May 7th, 2008 at 10:39 pm
With all respect, Joe (and I’m glad we can agree on the meaninglessness which the term “activist judge” now carries), your argument that Indiana’s law is a poll tax does not carry water. As Justice Stevens (no conservative he) pointed out in his opinion for the Court, the ID cards are free. Even if they don’t have an ID with them when they go to vote, a voter can still fill out provisional ballots and come back at a later date with an ID.
To argue that requiring voters to simply prove they are who they say they are is a poll tax invalidated by the 24th Amendment or any other provision of the Constitution is exactly the kind of Constitutional perversion I was writing about. If there was an actual fee mandated in order to acquire this ID card you, Sen. Obama, et al would have an argument. But there isn’t, and so you do not.
5. Joe | May 8th, 2008 at 2:24 pm
Geoff,
Just one more comment on this (haven’t had much time today)…
If everyone can get an ID card via the mail, then fine. If not, then it amounts to a poll tax or the equivalent of a literacy test.
If you can’t get it via the mail, then you must go somewhere to get that ID. If you are elderly, you may not be able to go to the RMV and get that ID.
If you are working multiple jobs, you may not have time to go get that ID during RMV hours.
If you are poor you may not have a car and can’t spend the time or the money to go to the RMV and get the ID,
If you are a single parent that needs to get your kid to school, get yourself to work, then pick your kid up at school. You may not have time during regular RMV hours to go get the ID.
There are a few examples of problems even with free ID’s.
So unless the government is going to mail out ID’s to everyone free of charge, it is basically a bar you must reach in order to vote. aka a voting tax.
6. Geoff | May 8th, 2008 at 4:22 pm
Joe, that “burden” is identical to the “burden” of having to show up at the polls to vote as well, except that you can go get your ID whenever while the polls are open for only one day. In other words, it is more of a burden to vote than it is to go in and get this ID. For those in indigent circumstances which would prevent them from showing up at the polls and acquiring a legal ID Indiana law provides them with the opportunity to vote absentee.
Ultimately this debate is irrelevant however. The Twenty-Fourth Amendment of the Constitution explicitly enumerates that “The right of Citizens of the United States to vote…shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.”(Emphasis my own). It says nothing about imposing some vague burden on voters, only that a voter cannot be denied the right to vote for failure to pay a tax. No poll tax is levied here and so no violation occurs. Only manipulating the text of the Amendment could mandate the result you seek.
If you think the law is unwise or unfair that is fine, the voters of Indiana can always elect representatives who will change the law. But, to borrow a line of dubious origin from Sen. Clinton, it would take “a willing suspension of disbelief” to accept that the Twenty-Fourth Amendment or any other provision within the Constitution invalidates the statute in question. Your arguments are political, not legal or Constitutional, and by painting them as such you confirm the points I made in my piece.
7. Joe | May 8th, 2008 at 8:20 pm
Fair enough Geoff.
We can agree to disagree.
Good talking with ya.
8. BLOGS FOR JOHN McCAIN&hellip | May 16th, 2008 at 9:18 am
John McCain , absolutely clear on diplomacy with rogue states:
Leave a Comment
Some HTML allowed:
<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <code> <em> <i> <strike> <strong>
Trackback this post | Subscribe to the comments via RSS Feed