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.