Legal Commentary

I have little doubt that Paul Cassell has forgotten more law than I will ever learn, and I trust Tom Smith's repeated assurances that his brother-in-law is a capital fellow.  I enjoyed a number of his rulings as a federal district court judge.  But his post yesterday on John McCain's speech setting forth his "judicial philosophy" was not his finest moment.  In substantial part, here is what Cassell has to say about McCain's speech:

From a conservative perspective, he says all the right things. I take him at his word. I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.

Cassell is entitled to take McCain at his word, I suppose -- although at least a couple of witnesses earlier suggested that McCain, who voted to confirm Justice Alito and now cites him as an example of the kind of judge he would appoint, privately said that if he were president he would not have appointed Alito.  And, of course, unless Cassell thinks campaign finance reform legislation presents no First Amendment problems, he ought perhaps ask whether McCain's deeds, and not his TelePrompted words, pose any problems for him.  Maybe Cassell could at least shift from the slavish "take him at his word" to the slightly more skeptical "trust but verify." 

But it is meaningless to say that McCain "says all the right things" in his speech, because the truth is that McCain says nothing much at all. 

Richard Posner has quite rightly pointed out on several occasions the extent to which lawyers and judges spout "the loftiest Law Day rhetoric," and how little heft and substance that rhetoric has.  This is true, in spades, of McCain's speech.  This is all strictly warmed-over stuff: the usual pap about "fidelity to the Constitution" combined with a cut-and-paste attack on "judicial activism."  I don't mean to sneer at those values; but at this level of generality, as Cassell should know, they mean as much, and as little, as motherhood and apple pie. 

Even at this level of generality, McCain's speech is not even particularly coherent or honest.  The "clear powers defined by our Constitution" are, in truth, not clearly defined.  Whether the judiciary respects the separation of powers or not, it is surely not the single "great exception" to the proper working of checks and balances in the system: has McCain forgotten the Terri Schiavo legislation or the current Executive Branch's substantial and largely covert rescinding of public law?  Whether or not the Ninth Circuit was right in Newdow, it is foolish hyberbole to say the courts have acceded to the desire to "rid our country of any trace of religious devotion," unless McCain is unaware of the extent to which even strongly separationist courts have championed vigorous religious speech in the broader public square.  And so on. 

I do not mean, by pointing out these little contradictions and inaccuracies along the way, to say that McCain's speech is fatally flawed or wrong.  In fact, there is much in it I agree with.  But that should not be surprising: it is sufficiently vague and fatuous that there is something for almost everyone to the right of Duncan Kennedy to agree with.  Ultimately, however, it leaves us little of substance to conjure with.  If that is what satisfies Cassell, he is an easily satisfied man. 

And there, I think, lies the real, and dual, message of Cassell's post, which is so well summed up in this sentence:  "I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture."  This suggests two conclusions to me.  First, we see here an example -- and not the first since McCain became the GOP nominee -- of trying to turn defeat into a victory of sorts: if we must put up with a maverick candidate who was singularly despised and opposed by the vast majority of the party's pros in and out of office, we can at least pretend he has been an establishment man all along.  Second, in that "rankle the folks" language, we see the age-old cry from conservatives to their candidate, one that is as often echoed on the left: "Do whatever you want as President -- just please, please, give us the Justice Department." 

Make no mistake.  Whatever he may say, unless he is fooling himself, Judge Cassell is not, and should not be, satisfied by McCain's speech.  The proper description of his sentiments here is "mollified."