McCain's Judicial Speech Could Help With Conservatives

In a shift, McCain aligns more with the right and advocates for judicial restraint.


Just days after the Democrats' congressional victory in November 2006, Sen. John McCain appeared before the annual gathering of the nation's leading conservative legal organization, the Federalist Society. Though the presidential campaign had not officially begun, McCain had a key message for his party: that Republicans had strayed from their core values by favoring "our incumbency over our principles."

Instead, he called for a greater balance between the branches of government, one that puts a key emphasis on a limited judiciary.

"The rule of law depends largely on our judiciary's commitment not to impose its will arbitrarily on us," he said. "That's why the appointment of federal judges has become such a flashpoint issue for so many."

It was a problem McCain could hardly blame on the Democrats alone, noting that Congress played a critical role, too, by passing laws that "leave too much to the discretion of our federal judges."

Yet the more moderate tone McCain struck a year and half ago seems to be from another era as the presumptive Republican nominee makes a bid to win over the conservative and religious base of his party—a key group he needs to boost turnout during the general election.

In a speech today laying out his views on the federal judiciary, McCain took aim at what he called the pervasive judicial activism in the courts.

"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," McCain told a crowd at Wake Forest University.

He continued: "The sum effect of these capricious rulings has been to spread confusion instead of clarity in our vital national debates, to leave resentment instead of resolution, and to turn Senate confirmation hearings into a gantlet of abuse."

Indeed, McCain made clear that, unlike his Democratic opponents, he would look for judges who value judicial restraint—in the mold of Chief Justice John Roberts and Justice Samuel Alito.

"My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power," he said.

It was a shift that won McCain praise among conservatives, who criticized him in 2005 for taking part in the Gang of 14, a group of senators who brokered a compromise to avoid a filibuster and get some—but not all—judicial nominations through confirmation.

"McCain has drawn a clear line between his support for judicial restraint and Obama's promise to appoint liberal judicial activists," said Ed Whelan, president of the Ethics and Public Policy Center in a statement. "McCain clearly recognizes that liberal judicial activism deprives Americans of their basic powers as citizens to establish policies through their legislators."

McCain's speech, however, led to strong condemnation from Democrats, who said McCain appeared to be following in the steps of the Bush administration in supporting ideological appointees. "His speech echoes the partisan Republican ploy of injecting politics into the judicial confirmation process, and that is harmful to the nation, and it is wrong," Democratic Sen. Patrick Leahy of Vermont said in a statement.