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.