Red Meat, Overdone

Wednesday, May 7, 2008

JUDICIAL nominations have never been a particular passion of Arizona Sen. John McCain. The presumptive Republican nominee for president got himself crosswise with conservatives in his party when he helped convene the bipartisan Gang of 14 senators to avert a showdown over the use of the filibuster to kill judicial nominations. That may be why, on a day when Democrats were holding yet another set of primaries, Mr. McCain felt the need to demonstrate his conservative bona fides when it comes to one of the most important and longest-lasting powers of a president: selecting judges.

It's a staple of presidential campaigns for the Republican nominee to denounce activist judges legislating from the bench, and Mr. McCain's red-meat rhetoric surely did not disappoint his base. He bemoaned the "common and systematic abuse of our federal courts by the people we entrust with judicial power," adding, "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." Some judges have overstepped their bounds in some cases, but Mr. McCain's language was unnecessarily incendiary and fundamentally inaccurate. Republican presidents have appointed federal judges for 20 of the past 28 years, and President Bill Clinton's judicial nominees were, for the most part, a relatively moderate bunch. One Supreme Court ruling about which Mr. McCain complained, expanding the power of government to "take" private property, had three justices nominated by Republican presidents in the five-justice majority: David H. Souter (President George H.W. Bush), Anthony M. Kennedy (President Ronald Reagan) and John Paul Stevens (President Gerald Ford). Reasonable people can disagree about whether the court properly interpreted the Constitution, but this was not a case of judges out of control.

Mr. McCain made a far more persuasive point when he criticized the "dreary rituals that now pass for advice and consent in the confirmation of nominees to our Supreme Court" and when he complained about delays in lower-court nominees obtaining hearings and votes. He rightly pointed out that he respected the presidential prerogative to appoint nominees who share a president's view of the law and the Constitution when he voted for both of Mr. Clinton's Supreme Court nominees, Ruth Bader Ginsburg and Stephen G. Breyer. He fairly chided Sen. Barack Obama and Sen. Hillary Rodham Clinton for not offering equivalent deference to President Bush's nominees. Yet there is a contradiction between Mr. McCain's assertions about judicial activists populating the bench and his claim that senators err when they fail to confirm nominees whose views they do not share. It may be good politics for Mr. McCain to rail about judges gone wild, but his cartoonish portrayal does a disservice to the judiciary -- and to what ought to be a serious campaign discussion about the proper role of the courts and the meaning of the Constitution.

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