McCain's judges.

John McCain gave a speech on judicial appointments yesterday, and it made me want to go back to a conference call he did with bloggers — including me — on April 27, 2007:

Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

Now, let's see what he said yesterday. Excerpts:

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.

This is the standard conservative criticism of federal judges.

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....

Of course, this is right.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable.

He's referring to Justice Stevens's opinion in the lethal injection case, Baze v. Rees. ("I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'") Back to McCain:

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

This refers to Justice Kennedy's opinion in Roper v. Simmons. Tremendous hostility was aimed at Kennedy over this opinion, you may remember.

I'm skipping over his discussion of Kelo and the flag pledge case to shorten this post, but, like the whole speech, it's very well composed. McCain has fine legal advisors (and he will have them when he's picking his judges).

He goes on to a long criticism of the Senate's approach to judicial confirmations. He doesn't say how he can appoint fully conservative judges when he needs the Senate's confirmation. Won't some moderation be required — especially if one of the liberal Justices of the Supreme Court steps down? The answer is obviously yes.

Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

That's all very well put. It makes it clear that picking — and confirming — judges is not about quality and qualifications. There is an ideological element, and it determined Obama's Senate vote. Now, as President, Obama will be nominating the judges — moderated by what the Senate will accept — but his vote on Roberts makes it plain that he won't pick conservative judges.

McCain notes that he voted for Bill Clinton's nominees to the Supreme Court, Stephen Breyer and Ruth Bader Ginsburg. (The text of his speech on his website misspells her name "Ginsberg," making me wonder whether his legal advisors are as good as I'd thought.) He voted based on quality and out of deference to the President's constitutional role, he says. What? Do you worry that he voted out of a secret love for liberal judges? McCain assures us that he will nominate "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference."

To compare what McCain said in this carefully prepared text to what he said to me in the conference call a year ago: He doesn't fall back on the stock phrase "strict construction" — which is a good thing. Like the judges he says he admires, he now talks about being faithful to what the law requires. His judges aren't "strict" (or narrow) but correct, and those other judges are lawlessly ranging beyond the text. That's the better way to present conservative judicial ideology. He certainly didn't say, as he did to me, that he wants conservative judges. He wants judges who adhere to the law and don't legislate. That's the better way to put it, even if it does worry some people who want assurances that he will give them another Scalia or Thomas. And why shouldn't they worry? He didn't name Scalia and Thomas as his model judges. He named Roberts and Alito (and his "friend" Rehnquist). Does that mean he's a notch removed from the most conservative position? (Does it irk Justice Scalia not to be named here, especially when most of this speech reads like a Scalia speech?)

McCain also didn't talk about appointing persons who have experience in the business world. In fact, he avoided talking about the role of the courts with respect to business and commerce.

He also avoided the subject I tried to get him to talk about a year ago: the balance on the Court. We have lived for a long time with a Court balanced with conservatives, liberals, and swing voters. Do we really want what would happen if we lost a liberal Justice (or Justice Kennedy) and the conservatives got a reliable 5th vote? Do we understand what would happen then? But do we think McCain would give that to us – or that the Senate would let him? Frankly, I don't think so.