Convictions: Slate's blog on legal issues

From the Benches to the Trenches

Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions' own Judge Nancy Gertner) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.

Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.

But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.

But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.

"RobertsAlito" Is Not All One Word—The End of Judicial Activism as a Campaign Issue

Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.

In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.

Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?

Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.

The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing.  As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.

What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.

And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented  in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.

Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.

Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.

Minority Leader McCain

There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.

So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.

That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.

William Howard Taft found the court far more attractive than the presidency itself. Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.

James Andrew Miller, who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post, suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.

Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing. All pretty exciting for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.

The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.

A Wee Bit Misunderstood

Adam, I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges."

Fitting those two labels is in part a matter of experience. But it is more importantly a matter of temperament—a matter both of the means a person employs to solve a question of law and the manner in which the person explains that resolution in an opinion. There are longtime practitioners who are not lawyer's lawyers. There are members of the bench who are not judge's judges. There are practitioners who display judicial temperament even though they have never donned black robes. Various law professors fit various categories.

The Stevens example is set forth simply to provide food for thought about what may happen when a president gives certain qualities priority over partisan political concerns.

With regard to your specific references, I am not persuaded that the nomination of John G. Roberts Jr., for whom I have great respect, serves as an equivalent example. His intellect, wit, and dignity indeed are welcome additions to the court. But the man who is now chief justice of the United States served in the executive branch, and that experience alone sets him apart from Stevens. Accounts like those in Jeffrey Toobin's The Nine (2007), moreover, suggest a greater ideological bent than was evident in Roberts' nomination hearings; and correct or not, a sense among some Democrats that there was such a bent no doubt underlay the "nay" votes mentioned in the Los Angeles Times article that spurred this blogthread. (This too sets Roberts apart from Stevens: 1975 predictions by U.S. Rep. Bella Abzug, D-N.Y., and the National Organization for Women that Stevens would do harm to women's rights did not convince a single senator to vote against him.) Finally, not all the chief's opinions have adhered to the "balls and strikes" metaphor he famously pitched when seeking nomination; last term's Seattle School District and this term's Medellín may be said to have set precedent as much or more than they followed it.

Though we may exercise a blogger's prerogative of contributing our two cents, we cannot be certain of what either presumptive presidential nominee will do unless and until he has the power actually to make a judicial selection.

Re: Perhaps a "Lawyer's Lawyer" ...

Diane, we're in full agreement on the point that the nation would benefit from the appointment of a "lawyer's lawyer" to the Supreme Court. While I can think of a number of federal judges (and even a couple of law professors) who I think would do a fine job on the federal bench, I agree that a longtime practitioner would bring a degree of practical judgment and experience that would benefit the court (and the public as it attempts to follow the laws interpreted by the courts).

That said, after reading your post, I'm not sure how Chief Justice Roberts doesn't squarely meet your standard. His lawyering skills were widely admired by the bar; he had no ideological ax to grind; and his tenure on the court has been marked by collegiality, wit, and a refreshing writing style. What more would a "lawyer's lawyer" or "judge's judge" have to do, beyond what Chief Justice Roberts did in his practice and on the federal bench, to satisfy the standard you envision?

And given that John McCain—neither an ideologue nor a reflexive partisan—repeatedly invokes Chief Justice Roberts as one of his ideal judges, isn't there abundant cause to conclude that, if the electors choose McCain, then "the person whom voters entrust with the filling of federal judicial vacancies will give priority not to 'partisan political concerns,' but rather to 'dignity' and 'intellect,' ideally tempered with 'charming wit and sense of humor' "?

Perhaps a "Lawyer's Lawyer" or "Judge's Judge" for the High Court

It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.

This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970.  Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."

Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)

Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:

...  I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...

One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."

("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)

A Guest Post by Robert Weisberg on the Relationship Between "Actvism" and "Federalism"

Robert Weisberg, of Stanford Law School, offers a guest post:

Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, or honesty) of those decrying it can bear. I would add a twist: the conflation of concerns about separation of powers and federalism. On the Bill O’Reilly show the night of the decision, Fox New jurisprude Megyn Kelly first offered a fairly generic denunciation of the decision as matter of constitutional jurisprudence. Then, when asked (by O’Reilly!) whether the decision at least merited respect under the principle of states’ rights (O’Reilly also noted that the state court was mostly Republican appointees), Kelly got agitated and fumed that states’ rights are not about the rights of state judges but the rights of the people. Whatever the mens rea of Ms. Kelly’s rant (see challenged virtues, above), it wonderfully illustrates the power and plasticity of the activism trope. And the focus on California is especially ironic. Here in the Golden State we have a ruling that may last just a few months, given the voters’ penchant for—indeed their addiction to—direct democracy. 

We do have an elected legislature here, but California voters love to do the legislative work themselves (both the restoration of the death penalty in the 1970s and the three-strikes law in the 1990s were passed the old-fashioned way in Sacramento but then got enhanced via initiative within one year), and the 50 percent rule applies to initiatives that change the Constitution as well. It is a state where the people seem quite willing to kick Supreme Court justices out of office (see Bird, Reynoso, Grodin over the death penalty in 1986) and, of course, find it easy to kick out a governor for no particular reason except dislike and mild buyers’ remorse. So in the separation-of-powers arena, the fourth branch of self-declared people’s sentiment seems quite able to take care of itself. 

Of course, we could also put the problem with this reading of states’ rights in more abstract terms, noting, for example, that the presence of both the Ninth and 10th Amendments in the federal Bill of Rights suggests that in 1791 there was a big difference seen between the autonomy of states and at least one, admittedly vague, version of a residual power of the people. The venerable provenance of federalism in the 18th century is a strange bedfellow to a concern over the phenomenon of ­judicial review—which was hardly on the minds of the Framers­, especially at the state level.

In any event, imagine that the D.C. gun ban had been enacted in a state; the U.S. Supreme Court had upheld it on broad collective rights grounds (contra the likely outcome in Heller), and the state Supreme Court had then struck it down as a violation of the state’s right-to-bear-arms clause: Would the chance of that decision being denounced as activist by pro-gun groups have exceeded zero, or the chance of those groups forbearing from proclaiming it as a vindication of states’ rights less than 100 percent? 

A Tale of Two Courts

David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this:

Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse ... by an elite group ... we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."

Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.

* * *

The McCain-Obama comments reflect a long-standing divide between conservatives and liberals on the role of the courts. Reduced to the simplest terms, conservatives say judges should follow the law, and liberals say they should ensure that justice is done.

The McCain campaign is sure to make this a major issue in its campaign because this issue plays well before the conservative base. The tried-and-true Rove formula calls for running on God, gays, and guns, and all three issues strongly correlate with the appointment of conservative judges. Given the California Supreme Court decision last week on gay marriage, the current U.S. Supreme Court case on gun control, and continuing skirmishes over the role of God in government and public life, the GOP will likely turn to this page in the playbook once again. Such is the conclusion of Jeff Toobin in this week's New Yorker: "McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court."

So what about the Democrats?  (Disclosure: I support the Obama campaign and have advised it on defense and veterans issues.) I think there may be an opportunity here. Sen. John McCain is an honorable public servant and war hero with great appeal to moderates and independents. To counter that, the Democratic party needs to remind voters that a McCain administration will appoint staunchly Republican judges of the type appointed during the last three Republican administrations. This issue should energize the Democrat base, and it should also give moderates pause before they side with McCain.

It's like the old quip my grandfather used to tell me: "There are only two kinds of judges: Republicans and Democrats."  Whom do you want on the bench?

Boy, That Doug Kmiec Is One Smart Cookie

Thanks, Orin, for replaying some of my greatest hits on the judicial role and the separation of powers. As I mentioned in my earlier posts on Sen. McCain's remarks, he and I are in large agreeement on the quality of Chief Justice Roberts and Justice Alito, and unlike him, I am willing to openly add Justices Scalia and Thomas—who seem rather expediently missing from the senator's listing of judicial exemplars. Even candidate McCain's likely opponent, Sen. Obama, has written openly that he is "not unsympathetic to Justice Scalia's position [on originalism]." One is tempted to say to Sen. McCain, "Yes, you can!" Have the courage of your convictions, man. That said, as I earlier wrote, Sen. McCain did have fine and unexceptional things to say about the judicial duty to observe the structural provisions of the Constitution.

But it still seems quite unwise and unfortunate for candidate McCain making his major speech on the judiciary to:

1. Lead with an unwarranted and unhealthy condemnation of the Third Branch, which candidate McCain described as "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Common! (putting aside the good-faith efforts of extraordinary Democratic appointees like Merrick Garland and David Tatel, how "common" can the "abuse" be if there have been 20 years of Republican judicial personnel added to the federal bench since 1981?)

2. Attack the Constitution, itself, which I take it is what McCain means by systemic! Candidate McCain glancingly posits that the founding design of the Constitution leaves the court unchecked, when Article III clearly does not. This, unfortunately, reveals less understanding of the separation of powers than his rhetorical flourishes of praise for constitutional structure elsewhere in his text lead us to believe. 

3. Have as its real purpose slamming Sen. Obama's mistaken vote against John Roberts and Samuel Alito. Now, we are on to something, but instead of saying something new or helpful about the difficulty of constitutional interpretation, the names of these venerable public servants are trotted out like bumper stickers. Candidate McCain makes no effort, and since he was speaking at a university with a law program of some note, one might have anticipated one to engage the topic in other than partisan and time-worn fashion. It's not as if Sen. Obama's judicial philosophy is hard to find. It would, for example, appear much influenced by Stephen Breyer's theory of Active Liberty. While giving "reverence" to the founding design, Sen. Obama, like Justice Breyer, believes constitutional principle not to be "static," with its "general principles" promoting active democratic participation while at the same time capable of dealing with the 21st century realities of "NSA computer data mining, ... freedom of speech on the Internet," and the like.

It would be a fine debate worthy of the next national convention of the Federalist Society and the ACS to undertake a serious examination of the competing interpretative views of the McCain-Obama contest. As Orin points out, Sen. McCain and I apparently both thought originalist material was not sufficiently relied upon as applied to the facts of Roper v. Simmons. While that was a juvenile death-penalty case, it is interesting that Sen. Obama in the somewhat different contexts of "mass murder, and the rape and murder of a child" finds the death penalty to be warranted. Since this is an area of substantive agreement on a sensitive and controversial topic, candidate McCain might have used his academic address to make some genuine contribution to the debate by examining why in judicial reasoning, it's not just policy agreement that counts, but how one gets there.

The point remains: The McCain speech unfairly attacked the good-faith service of the Third Branch generally; asserted in cursory fashion constitutional flaws that were not shown by the senator to exist; and took a snarky, partison swipe at his likely general-election opponent, whose writing contains a similar concern to that raised by Sen. McCain, that too often "Republicans no less than Democrats ... [have] asked the courts to overturn democratic decisions ... that they didn't like." Sen. Obama, whose judicial philosophy pays heed to originalist principle but does not rest there, openly questions whether his party "in [its] reliance on the courts to vindicate not only our rights but also our values ... had lost too much faith in democracy."

A small amount of research by candidate McCain's talented legal-advisory group would find both points of interpretative disagreement, within intriguing overlaps as well as points of accord with Sen. Obama. Wrestling with that reality would have been an interesting and honest talk. Indeed, that would have been the kind of talk someone interested in not being politically confused as offering only a third George W. Bush term might have been most anxious to give. Instead, candidate McCain chose only to warm over the tired commentary of the past, even that given by a tired old professorial soul like myself, while adding his own unique signature of political diviseness, constitutional mistake, and gratuitous insult to those who are presently serving on the bench. Frankly, I like my version better, and a new, substantively honest discussion of the important role of the courts in our constitutional system would have been the best of all.

Questioning Doug Kmiec on the McCain Speech

Doug, I'm interested in learning more about your criticism of Sen. McCain's speech. In particular, I'm curious about the differences between what Sen. McCain said in yesterday's speech and your own well-known criticisms of the federal bench and the Supreme Court in the past.

For example, in a 2005 column for the Los Angeles Times, you wrote that today's federal bench has been warped by the view that judges should decide cases not based on law but on their personal preferences. You suggested that we must begin to restore the proper view of judging in which judges actually follow the law (what you described as "the only faithful way for a judge to discharge his or her duty"):

For the last half a century, law students have been taught that cases are not decided on the basis of formal, authoritatively adopted rules and principles but on the basis of a judge's cultural and social intuitions. 'Legal realism,' as it is called, turns judging into a matter of force or will (personal preference) rather than the exercise of reason, the method called for by Alexander Hamilton in the 'Federalist Papers.' When judges disregard Hamilton's advice, they inject politics into judicial judgment and invite it into confirmation proceedings. Restoring an understanding of the law and the Constitution as text, rather than as jumping-off points for ideological excursions, is an uphill battle, yet it is the only faithful way for a judge to discharge his or her duty.

Source: Douglas W. Kmiec, "Judges: The Law Is the Law," June 26, 2005, Los Angeles Times.

You've also suggested that the next presidential election will prompt a choice between judges who are "faithful" to the law and those who will "corrupt" the law with the "specious" idea that law is politics. As you put it, "During the immediate years following the next presidential election, there are likely to be one or more vacancies that will either secure the bench as a faithful exponent of law or corrupt it by the specious idea that there is no meaningful distinction between law and politic."

You've also criticized some of the same cases that Sen. McCain targets in his speech on pretty much the same grounds as does McCain—that they are raw exercises of will. Here's what you wrote about Roper v. Simmons, the juvenile death-penalty case that Sen. McCain singles out for criticism:

The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries. That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion."

The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law — that is, something to be fairly interpreted and evenhandedly applied — or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second — in which an elite body is invited to impose binding pronouncements about how the rest of us are to live — is something else.

Source: Douglaw W. Kmiec, "Whose Constitution Is It Anyway?," March 6, 2005, Los Angeles Times.

Maybe I'm missing something, and I don't want to play "gotcha."  But to my ears, the new John McCain sounds rather similar to the old Douglas W. Kmiec.

McCain Injudiciously Attacks Judges and the Constitution; Dems Wrongly Attack Obama's Ideal

In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.

McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... 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.

This is not straight talk; it is calumny.

The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.

McCain's Intemperate and Unfortunate Assessment of the Third Branch

John McCain's harsh assessment of the federal judiciary is unworthy of him.

While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base. 

There is no flaw, Congress has virtually plenary authority over the Court's appellate docket.  Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism. 

Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees.  Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power."  Or that "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."

I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation.  To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law.  It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.

While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is  some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office. 

David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case.  Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues. 

It is poisonous to the health of the constitutional system to trash the Court  as venal politicians.  In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.

Sentence First, Verdict Afterward! The Anatomy of Plea Coercion.