Senator McCain delivered an address on judicial philosophy at Wake Forest University today. It’s very strong, very sound speech. You can read it here.
My favorite part is where McCain differentiates himself from his two Democratic rivals, and especially Barack Obama:
Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don’t seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.
For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it — and I quote — should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other.
Should McCain’s speech satisfy conservatives? Not in and of itself; actions speak louder than words. However, McCain’s actions over the years have mostly been consistent with these words. For example, he was a solid supporter of Roberts, Alito, and nearly all of the court of appeals nominees that Democrats attempted to block. His decision to join the Gang of 14 seems to have been a tactical one — he thought it would maximize success in confirming worthy nominees. One can disagree with that judgment, as I do, without seeing it as inconsistent with a sound judicial philosophy.
UPDATE: Earlier today, I explored some of the reservations conservatives have about McCain on these matters with Ted Olson, former Solicitor General of the United States and a top adviser to the campaign on legal affairs. Like me, Olson thought that the Gang of 14 deal was a mistake at the time and, on balance, he’s still of that view. But Olson too sees this as a tactical issue. He also beleives that McCain’s willingness to work with Democrats on this issue may prove helpful in dealing with some of the Democrats who might be inclined to block McCain’s judicial nominees, should he be elected.
I also asked about the credible reports that, when speaking to a small group of conservative lawyers early in the campaign, McCain differentiated between Roberts and Alito and indicated that he was less than excited about having the latter on the Supreme Court. Olson said he was not at the meeting and didn’t know what McCain said. He emphasized, however, that in his own talks with the Senator, McCain spoke highly of Alito and showed a clear understanding of the importance of nominating judges with a similar approach. Olson expressed complete confidence that McCain meant what he said on this score.
Finally, I raised the matter of McCain’s opposition to the confirmation of Jim Haynes to the Fourth Circuit. Olson agreed with me that Haynes should have been confirmed and shared my disappointment that he wasn’t. Olson attributed McCain’s opposition to his reliance on Lindsey Graham. He added that McCain has assured him that, in selecting nominees, he will consult primarily with Olson, Sam Brownback, and Jon Kyl.
For my part, I don’t expect that McCain will be perfect on these issues; indeed, even Reagan at times came up short. But I certainly agree that McCain understands most of the basics and that, in all likelihood, his approach to the judiciary will generally be sound.