Barr on McCain’s judicial philosophy in WSJ
July 17th, 2008 by Jason PyeBob has written an op-ed in the Wall Street Journal explaining why John McCain cannot be trusted on judicial nominees:
Mr. McCain is a convenient convert to the cause of sound judicial appointments. He has never paid much attention to judicial philosophy, backing both Clinton Supreme Court nominees – Stephen Breyer and Ruth Bader Ginsburg. He also participated in the so-called “Gang of 14,” which favored centrist over conservative nominees as part of a compromise between President George W. Bush and Senate Democrats.
What’s more, Republican Court appointments have often turned liberal. Earl Warren, William Brennan and Harry Blackmun were GOP appointees to the high court. So are “liberals” John Paul Stevens and David Souter, as well as centrists Anthony Kennedy and former Justice Sandra Day O’Connor. There is no reason to believe that a President McCain, once freed from the need to seek conservative support, would support more philosophically sound candidates. Even if he did, he would not likely prevail against a Democratic Senate majority.
[...]
In his May 2008 speech on judges at Wake Forest University, Mr. McCain talked about the importance of “the constitutional restraint on power,” but in practice he recognizes no limits on government or executive-branch authority. In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution’s system of checks and balances, and even its explicit grant of the law-making power to Congress.Mr. McCain has endorsed, in action if not rhetoric, the theory of the “unitary executive,” which leaves the president unconstrained by Congress or the courts. Republicans like Mr. McCain believe the president as commander in chief of the military can do almost anything, including deny Americans arrested in America protection of the Constitution and access to the courts.
It is important to choose judicial nominees carefully. But that is no reason for conservatives to vote for Mr. McCain. He has demonstrated no more interest in “conserving” the Constitution, and its principles of limited government and individual liberty, than has Mr. Obama.
The best way to get better judges is to expand candidate choice beyond the Republicans and Democrats. Supporting the political status quo guarantees more jurisprudence based on political convenience, not constitutional principle.
July 17th, 2008 at 7:38 am
This hits the nail square on the head, and echoes my sentiments in a previous Bob Barr 2008 blog entry’s commentary.
Some believe it’s imperative to protect us from the types of judges Obama might appoint, and think McCain’s appointees would be more acceptable to them. There’s little evidence, however, that a hair’s width of difference would exist between the appointees each status quo candidate would select; and plenty of evidence that they would, in fact, be ideologically identical.
July 17th, 2008 at 8:15 am
You know if Bob Barr plays up the suprem court more he may get every Republican vote. The reason is that the only reason people will vote McCain is to get judicals that are conservitive in. WHEN Bob Barr gets into the debate he should bring this point up alot.
July 17th, 2008 at 8:39 am
I thought this was a great editorial.
But there’s another way to frame the issue using the recent rulings by the court. We libertarians are devoted to liberty as opposed to some inconsistent ideology like “conservatism” or “liberalism”. For me, both habeas corpus and the individual right to own a gun are cornerstones in the foundation of liberty. Well, the “liberals” on the court protected habeas corpus and the “conservatives” protected an individual right to bear arms.
Which of these is more important? I’m not sure. But it shows to me that is doesn’t much matter whether it’s a Democrat or Republican President doing the nominating.
July 17th, 2008 at 9:34 am
DJ and Nicholas: you both bring up superb points about Bob and judicial appointments. I agree this is defintely an area on which Bob should focus time and effort.
Many Americans understand the role these appointments play in shaping our nation future and while some may think McCain appointments might be slightly more acceptable than Obama’s, I hardly think that’s accurate.
For me, Bob would be the one to nominate justices who clearly understand and follow the Constitution.
July 17th, 2008 at 10:48 am
I would like to see these articles focus on how McCain and OBama would appoint horrible people to the courts at all levels. The Supreme Court is important but all the other Federal courts are just as important.
July 17th, 2008 at 11:04 am
I agree with Bob! However, I think it might be wise of him to do more “investigative” work on Obama, if you know what I mean. He seems to be going after McCain much more than Obama, and while I realize there’s a much better chance of Bob getting the conservative vote than the liberal vote, some of the fence-sitting public who believe Bob doesn’t have a chance to win might just take his continual exposure of McCain as an indication that they should vote for Obama. I hope I’m wrong.
July 17th, 2008 at 12:04 pm
JMann,
Excellent point on lower judges, and nowhere is this more apparent than in the manipulations now being perpetrated by lower courts involving gun cases in the wake of the Heller case. (I.E. The canard that government can define what “reasonable” is in regard to gun ownership, a blatant falsehood that ignores the key words “shall not be infringed).
I think you are going to see Bob Barr go after Obama more heavily in the near future. Right now he is demonstrating that McCain is simply another wing of the same bird, and would bring nothing different than Obama. Obviously, if McCain is no different than Obama, the assumption is that neither is good. Barr makes the case that Repubicans and Democrats have both gotten us into this mess time and time again.
Strategically, he may be mentioning McCain more overtly as Barr can shore up support among disgruntled, true conservatives (the small government types) much quicker. This can bring in a rapid wave of support that will fuel a broader and more thorough campaign in August and September, and enable Barr to demonstrate to the Obama crowd that their guy is no different than McCain.
July 17th, 2008 at 1:04 pm
Stephen: I think you are right about the strategy involving McCain/I believe inroads there may be quicker at first as there are so many conservative Republicans seeking a real alternative.
As Bob demonstrates his strength and makes his sound positions well known, I think you will see people from all sides of the aisle giving him a good look as well
He does draw Obama into it by emphasizing there are not tremendous differences between Obama and McCain.
I like the strategy so far and it seems to be working.
July 17th, 2008 at 1:16 pm
I’m thrilled that Bob Barr is showing leadership on the issue of judicial appointments with this op-ed.
Two great (and short) resources on judicial philosophy are the 1985 debate between Antonin Scalia and Richard Epstein on judicial activism (I agree with Epstein and Barr that pro-liberty judicial activism is good) and “Reclaiming the Constitution” by Cato’s Roger Pilon (although I think he’s now gone neo-con).
Google ‘em, get ‘em, read ‘em.
July 17th, 2008 at 3:40 pm
Great article Bob! Go Bob Go!
July 17th, 2008 at 5:49 pm
This is a great op-ed, however I doubt that people who are voting for McCain simply for his judicial appointments are likely to switch to Barr’s camp. The people that are thinking about voting for McCain on the basis of judges that he MAY be able to nominate are Kool-Aid drinkers that have been fed a bunch of garbage by conservative pundits. They are sheeple.
July 17th, 2008 at 8:24 pm
I agree with DJ. Neither the apointees of Obama or McCain would provide us with what we seek, which is jurisprudence based on pure Constitutional Principle.
July 18th, 2008 at 12:05 am
5 to 4 on gun rights
5 to 4 on habeas corpus rights
We better do something………soon
July 18th, 2008 at 12:11 am
Never mind abortion
Never mind *** rights
Never mind same *** wedlock
There are items specifically stated in the constitution and the SCOUS
almost messes that up.
Imagine what they will do to all the laws of the country.
Too important to let McBama select any judge.