Legal Commentary

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. 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. 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. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America ? voters in both parties whose wishes and convictions are so often disregarded by unelected judges ? are entitled to know what those differences are.

So what else is new? That's how the system of partisan entrenchment in the judiciary works. Yawn. Each party attempts to entrench its friends and/or ideological allies in the judiciary. If they get enough appointments over time, the content of law starts to change. That's the living constitution. That doesn't make the decisions of courts correct. It is always available for us to criticize them and to mobilize politically against them, just as John McCain is doing here. But such criticism and mobilization is part of the political system: it is how the system of checks and balances in a democracy disciplines and shapes the judiciary over time.

Now there are certainly embarrassments in McCain's speech. For one thing, McCain's offering of the Kelo decision as a key example of judicial activism is simply bizarre. Whether or not you think Kelo was correctly decided (and there are plenty of criticisms to be leveled against the rule), the Supreme Court in Kelo followed precedents (Berman and Midkiff) going back half a century that counseled judicial restraint and left decisions up to the elected branches. Let me say that again: The Court in Kelo both followed precedent and deferred to majority rule. You can't get less activist and more restrained than that, unless "activist" means nothing different than "I disagree with what the Court did." Indeed, to the extent that the Kelo Court departed from Berman and Midkiff, it actually moved in the direction that critics wanted, that is, it made it a little more difficult to take private property for privately run development.

Perhaps the greatest embarrassment in the speech, however, is that although McCain argues that the federal judiciary has been misbehaving "[f]or decades," the judiciary has largely been stocked by Republicans for some time now. (Doug makes this point as well). It has been stocked with conservatives so long, in fact, that it is very conservative indeed, at least by comparison to the middle of the twentieth century. In the 28 years since 1980 the Democrats have had the opportunity to nominate judges for only eight years. In the last forty years they have appointed only two Supreme Court Justices out of fourteen appointments (Four by Nixon, one by Ford, none by Carter, three by Reagan, two by Bush I, two by Clinton, and two by Bush II.) So if the Republican Party thinks that federal judges just aren't doing things right (in both senses of that word) they really have only themselves to blame.

McCain's claim that the judiciary has only recently begun to act improperly is simply bogus. (Because of all those conservative jurists?) Somehow, however, I don't think that this revelation, will stop McCain or indeed, anyone else in his party from decrying what judges are doing. That is to say, his claim that there is something different (and increasingly liberal activist) about today's judiciary is dishonest but hardly surprising. No matter how many judges and Justices his party appoints, they will continue to rail against judicial activism. The whole point of partisan entrenchment is to establish and maintain ideological influence in the judiciary, making use of the fact that the federal judiciary enjoys life tenure. That means that the judiciary will cooperate with the political branches when they are also controlled by the same party, and it will slow down drastic changes when the political branches are in the hands of the other party. McCain and the Republican Party well understand that they may be in for a period of Democratic control of Congress, and potentially of the White House as well. During such periods, it is particularly important to push hard to entrench your ideological allies in the judiciary. John Adams and the Federalists understood this point well in 1800, leading to the first great struggle over federal judicial power. Of course, McCain doesn't want to lose the White House, he wants to win it. And so he wants to ensure that the judiciary is friendly to his party's policy initiatives. Equally important, he wants to ensure that the judiciary will apply conservative interpretations of the Constitution to keep ideologically opposed majorities in state and local governments in check. Partisan entrenchment is the way to help ensure that this happens.

Railing against unelected judges-- no matter how many of them your party may have appointed-- is as American as apple pie.

Full post as published by Balkinization on May 08, 2008 (boomark / email).