McCain's Judicial Plans in Lockstep with Bush
OAKLAND, California, Jun 8 (IPS) - While it isn't as eye-catching as the latest reports from Iraq and Afghanistan, or
as headline-grabbing as rapidly escalating gas prices and the growing number of housing foreclosures, and few voters
cast their ballot based on it, the judicial appointments of whomever wins the U.S. presidency in November will have
long-lasting ramifications for the country.
On May 6, while Senators Barack Obama and Hillary Clinton were still battling it out in Democratic presidential
primaries in Indiana and North Carolina, the Republican Party's presumptive presidential nominee, Arizona Senator John
McCain, stopped off at Wake Forest University in Winston-Salem, North Carolina to deliver a speech about his judicial
While McCain spoke about a number of issues related to the Constitution, including the separation of powers that it
enshrines, the subtext of his remarks was red meat to conservatives. The candidate assured them that he was resolutely
opposed to so-called "judicial activism", and that a McCain administration would nominate Supreme Court justices in the
mould of Chief Justice John G. Roberts Jr. and Samuel A. Alito, Jr., both of whom were appointed by President George W.
Interestingly, McCain failed to mention the other two stalwart conservatives on the court, Antonin Scalia and Clarence
Thomas, who were named by Bush as judicial models during the 2000 presidential campaign but are often seen as toxic by
independent voters. While the mainstream media dutifully reported on McCain's speech, they were more occupied by the
political buzz fashioned by the Obama/Clinton contests. McCain's remarks were reviewed carefully, and mostly favourably,
by conservative leaders.
Although still sceptical about McCain's conservative credentials, and downright angry over McCain's role in failing to
insist on using the nuclear option (voting to end filibustering by Democrats in the Senate over Bush's judicial
nominees), it is absolutely necessary that he convince them that he will continue their quest to control the U.S.
In his talk, McCain "warned against complacency, because 'there is one great exception in our day' to the smooth
functioning of the separation of powers," The New Yorker's Jeffrey Toobin reported.
That "great exception", according to McCain, "is the common and systematic abuse of our federal courts by the people we
entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on
matters that were never intended to be heard in courts or decided by judges."
McCain was not plowing new ground. From President Franklin Delano Roosevelt's packing of the Supreme Court with justices
that would support the policies of the New Deal in the 1930s, to a 1950s court headed by Chief Justice Earl Warren --
which ruled that the civil rights of all of U.S. citizens must be respected -- to judges appointed by President Bill
Clinton, conservatives have been railing against the a judicial activism that countered their agenda while nevertheless
supporting judicial activism when it propped up their agenda.
During the Clinton administration, conservatives inveighed against what they were then calling "the imperial judiciary".
In his 1996 book, "Slouching Toward Gomorrah: Modern Liberalism and American Decline," Robert H. Bork, a former U.S.
Court of Appeals judge who was roundly rejected for the U.S. Supreme Court nearly nine years earlier, went so far as to
suggest that the way to thwart "judicial tyranny" would be to "pass a Constitutional Amendment making any federal or
state court decision subject to democratic reversal in Congress."
At about the same time, Richard John Neuhaus, a longtime Religious Right leader, convened a First Things-sponsored
symposium titled "The End of Democracy: The Judicial Usurpation of Politics". David Brooks, who is now a contributor to
the op-ed pages of the New York Times and a regular commentator on PBS' News Hour, wrote in The Weekly Standard that the
symposium was organised to "suggest that an unrestrained judiciary is seizing control of crucial sections of American
life and taking decision-making power away from the democratic process and the American people."
Ironically, as a People for the American Way report pointed out, 59 percent of federal appeals court judges were
appointed by Republican Presidents Ronald Reagan, George H.W. Bush and the current Bush. In addition, seven of the nine
justices currently on the Supreme Court were appointed by these three Republicans.
As Toobin reported, in North Carolina, McCain was clearly following the lead of President Bush who has "often expressed
contempt for judges who 'legislate from the bench.'"
According to Toobin, "The senator has long touted his opposition to Roe [v. Wade], and has voted for every one of Bush's
judicial appointments." In addition, "the rhetoric of his speech shows that he is getting his advice on the Court from
the most extreme elements of the conservative movement."
Although McCain's speech specifically referred to a case where Supreme Court Justice Anthony Kennedy overturned the
death sentence of a 17-year-old boy who had been convicted of murdering a woman in her home after breaking into it, he
could well have been talking about any number of issues that have rubbed conservatives the wrong way, including the
recent California Supreme Court ruling in favour of same-sex marriage.
"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," said Obama spokesman Tommy Vietor.
"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," he
As decisions of the Roberts court have revealed, "judicial activism" is one of those eye-of-the-beholder things.
According to Toobin, the current court, "in just three years", has "crippled school-desegregation efforts (and hinted
that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of
job-discrimination laws; and made it more difficult to challenge the mixing of church and state."
Around the same time McCain delivered his remarks in North Carolina, his campaign announced the names of those who would
help him select nominees for judicial positions. Heading up the effort are two longtime hard line conservatives,
Theodore B. Olson, former solicitor general of the United States, and Kansas Senator Sam Brownback.
With the advanced age of two of the four liberal-leaning justices on the court -- John Paul Stevens is 88 and Ruth Bader
Ginsburg is 75 -- a factor, and the possibility that David Souter has had enough, the next president could name as many
as three new Supreme Court Justices during his first term alone.
Who McCain would appoint to the U.S. Supreme Court and other courts is something that independents will have to weigh
carefully when they enter the polling booths. If his North Carolina speech is a signpost, it appeared to indicate that
the Arizona senator's "maverick" status will not be in play when it comes to the courts.
Although McCain has been trying to separate himself from President Bush's policies and philosophy, in Winston-Salem he
made it pretty clear that when it comes to his judicial nominees, he's comfortable using Bush's playbook. *Bill
Berkowitz is a longtime observer of the conservative movement. His column "Conservative Watch" documents the strategies,
players, institutions, victories and defeats of the U.S. Right.
Bill Berkowitz is a longtime observer of the conservative movement. His column "Conservative Watch" documents the
strategies, players, institutions, victories and defeats of the U.S. Right.