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Thursday, May 08, 2008
John McCain and Partisan Entrenchment
JB
In contrast to Andy Koppelman, Steve Griffin and Doug Kmiec, I'm not all that upset at John McCain's speech on the judiciary. McCain is signaling to Republicans that he will take pretty much the same line on judicial nominations that the party has taken since 1980, when it began an increasingly self-conscious strategy of stocking the courts with movement conservatives. McCain doesn't like some things the courts have been doing, says that judges who decide cases this way are arrogating power to themselves improperly, and then states that if he is elected he will appoint judges who interpret the Constitution the way he thinks it should be interpreted:
Comments:
Now there are certainly embarrassments in McCain's speech. For one thing, McCain's offering of the Kelo decision as a key example of judicial activism is simply bizarre. Whether or not you think Kelo was correctly decided (and there are plenty of criticisms to be leveled against the rule), the Supreme Court in Kelo followed precedents (Berman and Midkiff) going back half a century that counseled judicial restraint and left decisions up to the elected branches. Let me say that again: The Court in Kelo both followed precedent and deferred to majority rule. You can't get less activist and more restrained than that, unless "activist" means nothing different than "I disagree with what the Court did."
I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches. Kelo's holding that the state can seize private property to give to private citizens for private use does not comport with the plain meaning of the 5th Amendment and is therefore activist. Kelo is simply another in a long line of activist cases which have attempted to strike the property protections from the 5th Amendment. Mr. McCain had ample cause to criticize this reprehensible decision which further legalized state theft of property. Under Kelo, Vito Corleone does not have to bring Luca Brasi along to put a gun to the head of a homeowner and tell him that either his signature or his brains will be on the contract to sell his house. All Vito has to do is have the municipal government take the home for him. [I]f the Republican Party thinks that federal judges just aren't doing things right (in both senses of that word) they really have only themselves to blame. That is completely correct, which is why I am pleased to hear Mr. McCain publicly commit to choosing conservative judges. The GOP base has a fixation on judges precisely because so many of Mr. McCain's predecessors have screwed up this part of their job. Given Mr. McCain's own attempted evisceration of the First Amendment under the guise of "campaign finance reform," this speech gives me a small measure of confidence that he will not continue that demolition through the appointment of judges.
Good post -- and we need to concentrate on giving these neo-fascist phonies a lot more to complain about.
I seem to remember seeing a lot in the Constitution about corporations being treated as having the same rights as persons
Bart:::
I have a great idea. Why not just make each vote cost a dollar, donated into the federal treasury, with not limit? That would show Feingold. FW
I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches.
Under this definition, any adherence to stare decisis is activist. For instance, Rehnquist's opinion in Dickerson (reaffirming Miranda) is activist, because the Miranda rule isn't in the text of the Fifth Amendment. Heck, every opinion striking down a statute could be said to be activist, because that is an implicit reaffirmation of Marbury, whose rule isn't in the text of Article III. Indeed, I doubt that Bart really believes this. If someone appointed him to the Supreme Court, would he really refuse to follow even 50 or 200 year old precedents that had been repeatedly reaffirmed, and even if he believed that utter chaos would result from overturning them? Not even Clarence Thomas believes this. Scalia sure doesn't. It can't be "activist" to follow precedent. If it is, then one is rejecting the entire common law tradition. (And just to be clear, I say this as someone who thinks Kelo was wrongly decided.)
Bart, Bart, Bart. A shining example of what the original post was saying: "activitist" has become a euphemism for "a decision I disagree with." MCain's speech was for right-wingers who would prefer to avoid thinking. Republicans appointed the vast majority of the federal judges on the bench, and it is those judges who are held up as the shining exemplars of conservatism who are, in fact, the most likely to strike down legislation enacted as the will of the people. Of late we have seen the federal judiciary by-and-large capitulate the the Bsuh Administration's wholesale disregard of the US Constitution -- also not a "conservative" or "originalist" viewpoint.
Why do Republicans even pretend to have principles? Aside from a rabid opposition to abortion (and about that, even, they are hypocritical), no principle ever enunciated by a national Republican leader in the past fifteen years has actually been enacted by legislation, executive function, or judicial decision. This includes adhering to the notion of "original intent" from the federal bench.
dilan said...
BD: I think it would be useful to start this discussion by defining what is meant by "activism." My definition is any decision which departs from the text of the Constitution, regardless of whether there is prior precedent similarly departing from the Constitution or the unconstitutional departure is in deference to the elected branches. Under this definition, any adherence to stare decisis is activist. Not unless you believe that all prior decisions are activist because they depart from the text of the Constitution, which I do not.
Bart,
Give that "...so many of Mr. McCain's predecessors have screwed up this part of their job." Why should we think that he will do any better?
beau said...
Bart, Give that "...so many of Mr. McCain's predecessors have screwed up this part of their job." Why should we think that he will do any better? :::sigh::: Hope? In reality, from my POV, Mr. McCain is simply the best of a bad choice. Mr. Obama's response to the McCain speech arguing that he would appoint judges committed to abortion and "social justice" gives us a pretty clear indication that Ginsberg would represent the conservative end of Obama's nominee spectrum. Mr. McCain is making a political commitment to the appoint conservatives in the mold of Roberts and Alito. Of course, Mr. Bush did the same thing and he appointed Harriet Miers purely because she was a woman replacing another woman. However, Mr. Bush's base took him to task for deviating from his public commitment and he backed down. I am unsure whether the even more stubborn McCain will back down from a similar mistake. Even so, the worse McCain would appoint has to be better than a Ginsberg clone...I hope. If elected, McCain actually has an extraordinary opportunity to complete the conservative legal project over the next couple decades by replacing the aging liberals with a conservative super majority on the Supreme Court and give the circuits firm conservative majorities. For example, where I did not think that Bush could appoint enough justices to reverse Roe, Mr. McCain most certainly does.
I have always felt that David Souter said it best when responding at his confirmation hearing to Strom Thurmond's question (following a 10-minute speech on the subject) about his views on "judicial activism":
"Senator, judicial activism is when the court rules against you."
I'm reminded of H.L. Mencken's comment re Teddy Roosevelt: "When he attacked the courts it was not because they put their own prejudice before the law but because they refused to put HIS prejudices before the law."
Conservative presidents will appoint conservative judges, and liberal presidents will appoint liberal judges. When they stray from that path, even inadvertently (e.g. Souter), they earn the scorn of the party faithful and no credit from their opponents. The law will change according to these appointments. At times it will be fairer to individuals than to the seats of power (the Warren court), and at times the balance will be reversed (the Rehnquist/Roberts courts). As a liberal-to-moderate Democrat, I would be furious if a President Obama or a President Clinton did not appoint judges whose philosophies skewed toward the left. In fact, it's one of the main things I'm looking forward to from our next Democrat president. So it's hard to be mad or surprised about McCain's statements.
Not unless you believe that all prior decisions are activist because they depart from the text of the Constitution, which I do not.
Bart, you really don't know what stare decisis means, do you? (You really get sloppy when you are out of your element.) Stare decisis means obeying precedents the judge doesn't agree with. Every judge will obey precedents he or she agrees with. So if you are saying that any decision that applies a prior precedent that was wrongly decided is "activist", you are rejecting the entire doctrine of stare decisis.
dilan said...
So if you are saying that any decision that applies a prior precedent that was wrongly decided is "activist", you are rejecting the entire doctrine of stare decisis. Huh? If the case of "A v. B" holds that the President has the power to appropriate money for the Iraq War, that decision is contrary to the text of the Constitution and is activist under my definition. If the case of "C v. D" affirms the unconstitutional holding if "A v. B," then common sense would dictate that "C v. D" is equally activist. Repetition of an error does not make it any less of an error. Stare decisis is a common law principle which has far less application in constitutional interpretation, and no application at all when the prior precedent is in error. See e.g. Smith v. Allwright, 321 U.S. 649, 665 (1944).
Stare decisis is a common law principle which has far less application in constitutional interpretation, and no application at all when the prior precedent is in error. See e.g. Smith v. Allwright, 321 U.S. 649, 665 (1944).
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Bart, this is arrogant and uninformed. Stare decisis has been a part of our constitutional decisionmaking for 200 years. Now, it isn't absolute, and you are surely right when you say it carries less weight in constitutional matters (because of the difficulty of amendment), but it certainly carries some weight. Further, your statement that stare decisis carries no weight when the precedent is in error shows that you don't know the first thing about jurisprudence. You see, you DON'T NEED stare decisis to reaffirm correct decisions, you knucklehead! The doctrine only comes into play when the prior decision was wrong (in the judge's view) and the judge has to decide whether to follow it anyway. Finally, you cannot read the reference to precedent in the White Primary Cases that you cite as meaning that the Court never follows erroneous precedent. See, e.g., Dickerson v. United States (reaffirming Miranda despite disagreement with it), United States v. Virginia (Rehnquist, J., concurring).
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