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.