WINSTON-SALEM, N.C. — Sen. John McCain today threw some red meat to conservatives, lashing out at liberal judges that make law rather than interpret the Constitution and ripping the current Supreme Court, considered by some to already be conservative.
The presumptive Republican presidential candidate said America’s courts have strayed far from the edict of the Founding Fathers, who laid out “not just guidelines,” but clear directives for the judiciary.
“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. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself,” Mr. McCain said.
Mr. McCain spoke in Wait Chapel at Wake Forest University, alongside former Solicitor General Ted Olsen, abortion foe Sen. Sam Brownback, North Carolina Sen. Richard Burr and former Tennessee Sen. Fred Thompson — who dropped out of the GOP race and today made his first appearance with Mr. McCain.
The Arizona senator, who has made no bones about courting independent swing voters and moderate Democrats, ticked off several Supreme Court cases, including the case of Susette Kelo.
“Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way,” he said. “And this power play actually got the constitutional ’thumbs-up’ from five members of the Supreme Court.”
He ridiculed the case of the California man who filed a suit against the entire U.S. States Congress — “which I guess made me a defendant, too — to remove the words “Under God” in the Pledge of Allegiance.
“The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were — and I quote — ’impermissible.’ ….
“I have a feeling this fellow will get wind of my remarks today — and we’re all in for trouble when he hears that we met in a chapel,” Mr. McCain said, drawing laughter.
The senator said some controversial court decisions fall under the rubric of “judicial activism,” and indicate that the balance of power designed by the Founding Fathers is out of whack.
“Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game,” he said.
The move away from the strict interpretation of the Constitution has doubled back on Congress, where contentious confirmation hearings for judicial nominees is now the norm.
“We’ve seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers,” he said. “No tactic of abuse or delay is out of bounds, until the nominee is declared ’in trouble’ and the spouse is in tears,” Mr. McCain said, referring to the latest Supreme Court appointee Samuel Alito, whose wife broke down during the congressional hearing.
But the breakdown stretches much farther, the senator said.
“Presidential nominees to the lower courts are now lucky if they get a hearing at all. … At this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina,” he said, noting that a third of the Fourth Circuit seats are vacant.
“But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn’t meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy,” he said.
Mr. McCain pointed out his role in the so-called “Gang of 14,” a bipartisan group of senators that “got together and agreed we would not filibuster unless there were ’extraordinary circumstances.’
“This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices [John] Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger,” he said.
Mr. McCain took aim at his Democratic opponents, criticizing them for their opposition of Chief Justice Roberts. He lambasted Sen. Barack Obama for his opposition, citing the Illinois senator’s words that a Supreme Court justice “should share ’one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.’”
“These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law,” Mr. McCain said.
“Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other.”
He noted that when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, “I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise.”
Mr. McCain said he would give great care to the nomination of judges, and pledged to restore the core beliefs of the judicial system.
“My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice,” he said.
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