Judging by the Rhetoric
A reader, Sarah, recently emailed me for my reaction to John McCain’s speech Tuesday on the federal judiciary. She writes:
Speaking of ludicrous comments that McCain has made, what do you think about this comment that McCain made yesterday in a speech about checks and balances: "[It] 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. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people."
McCain's comments fall squarely within the conservative tradition of arguing that judges (particularly those appointed by Democrats) have taken to circumventing the legislative process (and the checks and balances system), by using judicial rulings to make policy and pursue liberal political objectives from the bench. McCain is no doubt interested in shoring up conservative support for the general election, and judicial appointments will need to be a central component of his strategy. These new statements reflect a rhetorical shift to the right by McCain, likely motivated by the fact that some conservatives have been suspicious of his commitment to the issue, ever since he joined the Gang of 14 judicial appointment agreement brokered in the Senate in 2005.
With a few Supreme Court justices at or near retirement, and other judicial vacancies remaining for the next president to fill, we will certainly hear a lot more about this issue on the campaign trail in the coming months. I expect that the nominees will draw some very sharp ideological distinctions on the types of judges they would be willing to elevate to the federal bench. If McCain’s rhetoric on Tuesday is any indication, the issue could prove to be one of the real political flashpoints of the general election.

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