McCain’s Incoherent Judicial Philosophy

Given the primary coverage today, it’s no wonder that McCain’s speech on his judicial philosophy received little play in the media. (See NYT’s coverage here; The Posts’s coverage here)

But in my opinion, this is always an issue that is almost never talked about in the primaries, but one whose importance can overshadow whatever policy platforms candidates have. Because, once you appoint someone to the bench, he/she stays there forever.

McCain’s central thesis should come as no surprise to anyone familiar with American conservatism, as he complains about the usual judicial activists and non-originalists:

“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. And the only remedy available to any of us is to find, nominate, and confirm better judges.”

These claims clearly ignore the history and the role of the judiciary. First of all, this claim only makes sense if you already assume that judges should always stick to what the founders meant and how they interpreted the words of the Constitution; this is hardly an obvious and settled claim. Of course the founders would have been mystified by contemporary legal reasoning–that’s because legal reasoning isn’t set in stone–it constantly evolves.

Second, what should be determined democratically is itself a democratic question: it’s up to the people to determine what issues to decide democratically and what issues to decide judicially. The fact that the judiciary, as an institution, has survived this long largely intact, is good evidence that the people perceive the judiciary as a legitimate institution.

Third, the accusation against the judiciary for ignoring the will of the people seems to miss the point: the founders designed the institutions in such a way that the judiciary is supposed to ignore the will of the people. If McCain read his Federalist Papers as carefully as he should have, he would have realized this by now.

Fourth, and relatedly, McCain’s suggestion that the democratic deficit of the judiciary can only be solved if we appoint “better judges” again miss the institutional nature of the judiciary. The judiciary is by nature undemocratic and anti-majoritarian, and we have accepted the institution as such by our acceptance of the Constitution. Again, if McCain really understood the philosophy behind the creation of an independent, undemocratic judiciary, he would have realized that the democratic deficit isn’t something that only applies to so-called activist judges–it applies to the institution as a whole. So how can any individual judicial appointments decrease the democratic deficit when the institution itself is undemocratic to begin with? This is just an incoherent argument.

McCain then goes on to praise the virtues of judicial restraint, going so far as to say that is the basis of the court’s moral authority:

The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.

Moral authority? Where does McCain get this from? The authority of judges is not moral, but Constitutional. And he quickly falls into the false distinction between “making law” and “applying law.” This distinction is not as clear as McCain says it is.

Going on more, McCain says:

“Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts wandering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.”

Of course! Anyone with half a brain realizes that sometimes the judiciary is the last venue to push for policy. But is this always a bad thing like McCain seems to suggest? My answer is no! I mean, just look at desegregation cases–without the judiciary, those policies would die at the hands of a racist majoritarian institution. After all, isn’t that one of the major reasons to make the judiciary undemocratic: precisely to go against the majority tide to protect minority rights? Was Brown v. Board an act of “judicial abuse,” as McCain seems to imply?

Anyways, the speech goes on like this for a while, so I’ll spare the paragraph-by-paragraph take down. The next point of interest is McCain’s statements about who he will nominate if he were made president:

“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.”

This strikes me as problematic, because both Roberts and Alito have swayed the Supreme Court very much to the right, and Roberts is especially problematic, because even as he promised to build unanimity and moderation during his confirmation hearings, under his tenure, the Supreme Court has had many 5-4 split decisions on controversial issues, mostly going to the right.

And finally, McCain says this:

“It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people.”

And here again is the incoherence of his argument. I agree with him that respect for the roles and responsibilities of each branch of government is necessary for our government, but this respect entails respecting the anti-majoritarian and undemocratic role and responsibilities of the judiciary. McCain wants to respect the Constitution, and I do not doubt the sincerity of his respect, but surely anyone who is familiar with the Constitution and its history knows that the Constitution does not establish a completely democratic government. If one really respects the Constitution in its entirety, then one has to accept its clearly anti-majoritarian elements. McCain’s problem is that he wants to respect the Constitution, but only those parts which he likes–he doesn’t want to acknowledge that the judiciary, as an institution, fundamentally derives it power from the Constitution itself.

In other words, he wants it both ways, and you just can’t have that.


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