Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search

 

McCain's Judicial Plans in Lockstep with Bush

McCain's Judicial Plans in Lockstep with Bush


Analysis by Bill Berkowitz

OAKLAND, California, Jun 8 (IPS) - While it isn't as eye-catching as the latest reports from Iraq and Afghanistan, or as headline-grabbing as rapidly escalating gas prices and the growing number of housing foreclosures, and few voters cast their ballot based on it, the judicial appointments of whomever wins the U.S. presidency in November will have long-lasting ramifications for the country.

On May 6, while Senators Barack Obama and Hillary Clinton were still battling it out in Democratic presidential primaries in Indiana and North Carolina, the Republican Party's presumptive presidential nominee, Arizona Senator John McCain, stopped off at Wake Forest University in Winston-Salem, North Carolina to deliver a speech about his judicial philosophy.

While McCain spoke about a number of issues related to the Constitution, including the separation of powers that it enshrines, the subtext of his remarks was red meat to conservatives. The candidate assured them that he was resolutely opposed to so-called "judicial activism", and that a McCain administration would nominate Supreme Court justices in the mould of Chief Justice John G. Roberts Jr. and Samuel A. Alito, Jr., both of whom were appointed by President George W. Bush.

Interestingly, McCain failed to mention the other two stalwart conservatives on the court, Antonin Scalia and Clarence Thomas, who were named by Bush as judicial models during the 2000 presidential campaign but are often seen as toxic by independent voters. While the mainstream media dutifully reported on McCain's speech, they were more occupied by the political buzz fashioned by the Obama/Clinton contests. McCain's remarks were reviewed carefully, and mostly favourably, by conservative leaders.

Although still sceptical about McCain's conservative credentials, and downright angry over McCain's role in failing to insist on using the nuclear option (voting to end filibustering by Democrats in the Senate over Bush's judicial nominees), it is absolutely necessary that he convince them that he will continue their quest to control the U.S. judicial system.

In his talk, McCain "warned against complacency, because 'there is one great exception in our day' to the smooth functioning of the separation of powers," The New Yorker's Jeffrey Toobin reported.

That "great exception", according to McCain, "is the common and systematic abuse of our federal courts by the people we entrust with judicial power. 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."

McCain was not plowing new ground. From President Franklin Delano Roosevelt's packing of the Supreme Court with justices that would support the policies of the New Deal in the 1930s, to a 1950s court headed by Chief Justice Earl Warren -- which ruled that the civil rights of all of U.S. citizens must be respected -- to judges appointed by President Bill Clinton, conservatives have been railing against the a judicial activism that countered their agenda while nevertheless supporting judicial activism when it propped up their agenda.

During the Clinton administration, conservatives inveighed against what they were then calling "the imperial judiciary". In his 1996 book, "Slouching Toward Gomorrah: Modern Liberalism and American Decline," Robert H. Bork, a former U.S. Court of Appeals judge who was roundly rejected for the U.S. Supreme Court nearly nine years earlier, went so far as to suggest that the way to thwart "judicial tyranny" would be to "pass a Constitutional Amendment making any federal or state court decision subject to democratic reversal in Congress."

At about the same time, Richard John Neuhaus, a longtime Religious Right leader, convened a First Things-sponsored symposium titled "The End of Democracy: The Judicial Usurpation of Politics". David Brooks, who is now a contributor to the op-ed pages of the New York Times and a regular commentator on PBS' News Hour, wrote in The Weekly Standard that the symposium was organised to "suggest that an unrestrained judiciary is seizing control of crucial sections of American life and taking decision-making power away from the democratic process and the American people."

Ironically, as a People for the American Way report pointed out, 59 percent of federal appeals court judges were appointed by Republican Presidents Ronald Reagan, George H.W. Bush and the current Bush. In addition, seven of the nine justices currently on the Supreme Court were appointed by these three Republicans.

As Toobin reported, in North Carolina, McCain was clearly following the lead of President Bush who has "often expressed contempt for judges who 'legislate from the bench.'"

According to Toobin, "The senator has long touted his opposition to Roe [v. Wade], and has voted for every one of Bush's judicial appointments." In addition, "the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement."

Although McCain's speech specifically referred to a case where Supreme Court Justice Anthony Kennedy overturned the death sentence of a 17-year-old boy who had been convicted of murdering a woman in her home after breaking into it, he could well have been talking about any number of issues that have rubbed conservatives the wrong way, including the recent California Supreme Court ruling in favour of same-sex marriage.

"The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people," said Obama spokesman Tommy Vietor.

"Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said.

As decisions of the Roberts court have revealed, "judicial activism" is one of those eye-of-the-beholder things. According to Toobin, the current court, "in just three years", has "crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state."

Around the same time McCain delivered his remarks in North Carolina, his campaign announced the names of those who would help him select nominees for judicial positions. Heading up the effort are two longtime hard line conservatives, Theodore B. Olson, former solicitor general of the United States, and Kansas Senator Sam Brownback.

With the advanced age of two of the four liberal-leaning justices on the court -- John Paul Stevens is 88 and Ruth Bader Ginsburg is 75 -- a factor, and the possibility that David Souter has had enough, the next president could name as many as three new Supreme Court Justices during his first term alone.

Who McCain would appoint to the U.S. Supreme Court and other courts is something that independents will have to weigh carefully when they enter the polling booths. If his North Carolina speech is a signpost, it appeared to indicate that the Arizona senator's "maverick" status will not be in play when it comes to the courts.

Although McCain has been trying to separate himself from President Bush's policies and philosophy, in Winston-Salem he made it pretty clear that when it comes to his judicial nominees, he's comfortable using Bush's playbook. *Bill Berkowitz is a longtime observer of the conservative movement. His column "Conservative Watch" documents the strategies, players, institutions, victories and defeats of the U.S. Right.

*************

Bill Berkowitz is a longtime observer of the conservative movement. His column "Conservative Watch" documents the strategies, players, institutions, victories and defeats of the U.S. Right.

© Scoop Media

 
 
 
Top Scoops Headlines

 

Eric Zuesse: U.S. Empire: Biden And Kerry Gave Orders To Ukraine’s President

Eric Zuesse, originally posted at Strategic Culture On May 19th, an implicit international political warning was issued, but it wasn’t issued between countries; it was issued between allied versus opposed factions within each of two countries: U.S. and Ukraine. ... More>>

Binoy Kampmark: Budget Cockups In The Time Of Coronavirus: Reporting Errors And Australia’s JobKeeper Scheme

Hell has, in its raging fires, ringside seats for those who like their spreadsheets. The seating, already peopled by those from human resources, white collar criminals and accountants, becomes toastier for those who make errors with those spreadsheets. ... More>>


The Dig - COVID-19: Just Recovery

The COVID-19 crisis is compelling us to kick-start investment in a regenerative and zero-carbon future. We were bold enough to act quickly to stop the virus - can we now chart a course for a just recovery? More>>

The Conversation: Are New Zealand's New COVID-19 Laws And Powers Really A Step Towards A Police State?

Reaction to the New Zealand government’s handling of the COVID-19 pandemic and resultant lockdown has ranged from high praise to criticism that its actions were illegal and its management chaotic. More>>


Keith Rankin: Universal Versus Targeted Assistance, A Muddled Dichotomy

The Commentariat There is a regular commentariat who appear on places such as 'The Panel' on Radio New Zealand (4pm on weekdays), and on panels on television shows such as Newshub Nation (TV3, weekends) and Q+A (TV1, Mondays). Generally, these panellists ... More>>


Binoy Kampmark: Welcome Deaths: Coronavirus And The Open Plan Office

For anybody familiar with that gruesome manifestation of the modern work place, namely the open plan office, the advent of coronavirus might be something of a relief. The prospects for infection in such spaces is simply too great. You are at risk from ... More>>

Caitlin Johnstone: Do You Consent To The New Cold War?

The world's worst Putin puppet is escalating tensions with Russia even further, with the Trump administration looking at withdrawal from more nuclear treaties in the near future. In addition to planning on withdrawing from the Open Skies Treaty ... More>>


Binoy Kampmark: Why Thinking Makes It So: Donald Trump’s Obamagate Fixation

The “gate” suffix has been wearing thin since the break-in scandal that gave it its birth. Since Watergate, virtually anything dubious and suggestive, and much more besides, is suffixed. Which brings us to the issue of President Donald Trump’s ... More>>

Gordon Campbell: On The Ethics (and Some Of The Economics) Of Lifting The Lockdown

As New Zealand passes the half-way mark towards moving out of Level Four lockdown, the trade-offs involved in life-after-lockdown are starting to come into view. All very well for National’s finance spokesperson Paul Goldsmith to claim that “The number one priority we have is to get out of the lockdown as soon as we can”…Yet as PM Jacinda Ardern pointed out a few days ago, any crude trade-off between public health and economic well-being would be a false choice... More>>


Binoy Kampmark: Brutal Choices: Anders Tegnell And Sweden’s Herd Immunity Goal

If the title of epidemiological czar were to be created, its first occupant would have to be Sweden’s Anders Tegnell. He has held sway in the face of sceptics and concern that his “herd immunity” approach to COVID-19 is a dangerous, and breathtakingly ... More>>


 
 
 
 
 


 
 
 
  • PublicAddress
  • Pundit
  • Kiwiblog