WINSTON-SALEM, N.C. (BP)–Presumptive Republican presidential nominee John McCain gave his most-detailed speech yet on the judiciary, criticizing Democrats Hillary Clinton and Barack Obama for their votes against President Bush’s two Supreme Court nominees and pledging, if elected, to nominate only judges who practice “judicial restraint.”
Seeking to unify conservatives around his candidacy, McCain said he would look for nominees “in the cast of” Chief Justice John Roberts, Justice Samuel Alito and former Chief Justice William Rehnquist.
“The surest way to restore fairness to the confirmation process is to restore humility to the federal courts,” McCain said during a May 6 speech at Wake Forest University. “In federal and state courts, and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary. And I intend to find them — and promote them — if I am elected president.
“… I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.”
The Arizona senator said he would look for judges who “know their own minds and know the law, and know the difference.”
“My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power,” he said.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, applauded the speech. The judiciary, Land said, ranks at the top of concerns for social conservatives “because it impacts every issue.”
“I thought it was an excellent speech and one which I think will be of tremendous help to him in encouraging evangelicals and Catholics and other social conservatives to vote for him,” Land told Baptist Press. “When he talks about judicial restraint, when he talks about judicial humility, when he talks about Roberts and Alito being the template for the kind of judges that he would nominate — that is symphonic music to the ears of social conservatives.”
Land said McCain’s speech “squares with his voting record.”
“I’ve always been somewhat amused at people who try to portray John McCain as some kind of closet liberal,” Land said. “He has been his whole career in the House and Senate a reliable conservative with some blind spots — one of them being McCain-Feingold and campaign finance reform, another of them being embryonic stem cell research.”
Other than embryonic stem cell research, McCain has had a pro-life voting record all the way back to the 1980s, Land said. Last month National Right to Life endorsed McCain for president.
McCain criticized what he called examples of “judicial activism” by courts in recent years. He pointed to the Ninth Circuit Court of Appeals’ 2002 ruling that prohibited the Pledge of Allegiance from being cited in public schools if it included the phrase “Under God.” He also cited the Supreme Court’s Kelo v. City of New London decision in 2005 that the government could take private property to sell for private development.
America’s system of checks and balances between the three branches of government is out of balance, McCain said, because of 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,” he said. “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. And the only remedy available to any of us is to find, nominate and confirm better judges.”
McCain said he and the two Democrats in the race “have very different ideas about the nature and the proper exercise of judicial power.”
“We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits,” he said. “And the people of America — voters in both parties whose wishes and convictions are so often disregarded by unelected judges — are entitled to know what those differences are.”
Often, McCain said, “political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige.” Politicians, he said, make it worse by “abdicating responsibility and letting the courts make the tough decisions for them.”
Obama and Clinton, McCain said, are “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.”
Those who support “activist judges,” McCain said, “want to be spared the inconvenience of campaigns, elections, legislative votes and all of that.”
McCain criticized the Senate for failing to confirm Bush’s nominees to the lower courts, including to the Fourth Circuit Court of Appeals, which, as McCain noted, has been declared a “judicial emergency” because a third of its seats are vacant. McCain joked that Senate Democrats have time to “process earmark spending projects” but not time to vote on nominees who, he said, are “lucky if they get a hearing at all.”
“[T]he alarm has yet to sound for the Senate majority leadership,” McCain said. “Their idea of a judicial emergency is the possible confirmation of any judge who doesn’t meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy.”
McCain said his commitment to the American people is “to help restore the standards and spirit that give the judicial branch its place of honor in our government.”
“Every federal court should command respect, instead of just obedience,” he said. “Every federal court should be a refuge from abuses of power, and not the source.”
Tony Perkins, president of the Family Research Council, gave high marks to McCain’s speech.
“[It] will be well-received by millions of Americans alarmed by activist judges who undermine the rule of law by legislating from the bench,” Perkins said in a statement. “… We applaud Senator McCain for his support of federal judges who will apply the U.S. Constitution.”
Michael Foust is an assistant editor of Baptist Press.