First Principles

John McCain gave a fantastic speech today on judges, surrounded by conservative legal stalwarts like Ted Olson and Fred Thompson.  It was music to the ears of anyone who believes that, when it comes to protecting the sovereignty of the individual, there is no more important issue in a presidential election than picking the right judges.

All the powers of the American presidency must serve the Constitution, and thereby protect the people and their liberties. For the chief executive or any other constitutional officer, the duties and boundaries of the Constitution are not just a set of helpful suggestions. They are not just guidelines, to be observed when it’s convenient and loosely interpreted when it isn’t. The clear powers defined by our Constitution, and the clear limits of power, lose nothing of their relevance with time, because the dangers they guard against are found in every time.[…]

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.[…]

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.

I heard the first part of his speech as I was getting ready for work this morning, and the whole time I kept thinking back to McCain-Feingold, the baldly unconstitutional assault on political speech.  How does he square his sponsorship of that limitation on the fundamental Constitutional principle of free speech with his lofty rhetoric about protecting “the people and their liberties”?

My biggest fear is that every federal judge who is interviewed by McCain or his staff for consideration will be asked, “How would you rule if the Constitutionality of McCain-Feingold is before you?”, and the answer to that will be President McCain’s litmus test for nomination.  It is his baby, after all.  And while his speech laudably criticized activists judges for not deferring to the political branches of government when they disagree with their policy preferences, it was much lighter on the importance of an independent judiciary protecting a minority position against unconstitutional laws, even if they are popular.

The question is – will McCain nominate a true conservative jurist, even if that judge is likely to invalidate legislation he sponsored and midwifed into being?

McCain’s record on judges is, I think, solid.  And while others have criticized him for the “Gang of 14” deal, in retrospect, maintaining the power to filibuster judicial nominees may be the only tool conservatives have left to keep some real lefties off the bench should the Republicans fail to keep the White House.  And that deal got a lot of conservtive judges finally on the bench who would otherwise still be held up.

And the alternative is unthinkable, as McCain rightly points out.

I hope Senator McCain stays true on the issue of judges, and seeks out more Robertses and Alitos.  I trust him when he says that is his intention.  Hopefully, by surrounding himself with people who have been fighting the good fight to restore a conservative legal culture in this country, he’ll match his rhetoric with action if and when he is the President.