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McCain declares politicization of judiciary must continue

By Jack M. Balkin

Well, not quite as you can see from Andy Koppelman's post below. Particularly in light of Republican dominance of the presidency since 1980, McCain's performance was one of the worst speeches about the judiciary since Bob Dole did the same thing in the 1996 election. McCain's speech will provide Tom Frank a perfect example when he writes his next book on what's the matter with (American politics) Kansas. And it is also consistent with the picture Jeff Toobin paints in The Nine of the Republican party being totally captured by the religious right with respect to judicial nominations.

But suppose for a moment we lived in a world where the two major party candidates decided for the good of the country to depoliticize the judiciary. What concessions would both sides have to make for this to work? Here are some random thoughts. First, both candidates would acknowledge judicial nominees of both parties had been treated shamefully and sometimes rejected for no good reason. Second, they would agree that in the future, they would abjure trying to achieve broad policy goals through litigation. Third, they would take at least one controversial issue now under the thumb of the judiciary and throw it back into the political arena. Republicans could pick abortion, Democrats might pick campaign finance reform. It would be understood that there would be no further judicial interference on these issues. Fourth, they would reaffirm the value of judicial independence and raise public awareness on the importance of supporting the judiciary's more routine activities such as enforcing federal law. Fifth, they would reconstitute the nomination process along the lines first explored by President Carter with independent panels required to nominate bipartisan slates of candidates, perhaps with the assistance of public-spirited foundations and a joint ABA/Federalist Society task force. It would be understood that judicial nominees must be roughly divided between the parties, although with this provision for quality control.

Just some academic musings, mind you.

Full post as published by Balkinization on May 07, 2008 (boomark / email).