Tuesday, May 6, 2008

McCain On The Judiciary, Kelo, & Originalism

The greatest internal threat to our country lies in the third pillar of our government, the courts, where judicial activism to advance liberal social policies occurs daily and where Supreme Court justices positing the canard of the "living contstitution" feel free to dispense with the democratic methods written into the Constitution to make changes to our founding document and, instead, simply make the changes they want according to their own whim. It is the primary vehicle the far left has used to attack the very fabric of our society since the time of FDR. John McCain, speaking in NC alongside Fred Thompson, Ted Olson and Sam Brownback, laid out his bill of particulars condemning judicial activism and promising to appoint "strict constructionists."


Given the ages of several members of the Supreme Court - John Paul Stevens, 88, Ruth Bader Ginsburg, 75, Antonin Scalia, 72, Anthony Kennedy, 71 - it is quite likely that the next president will make multiple appointments to the Supreme Court. Those appointment will determine its bent as either an activist or originalist court for decades to come - and to understand the ramifications of such a situation, see Justice Scalia's discussion on originalism here. Indeed, besides national security, the power to nominate Supreme Court justices will be the most important function of our next president. With that in mind, this from the Washington Times:

The presumptive Republican presidential candidate said America's courts have strayed far from the edict of the Founding Fathers, who laid out "not just guidelines," but clear directives for the judiciary.

. . . Mr. McCain spoke in Wait Chapel at Wake Forest University, alongside former Solicitor General Ted Olsen, abortion foe Sen. Sam Brownback, North Carolina Sen. Richard Burr and former Tennessee Sen. Fred Thompson — who dropped out of the GOP race and today made his first appearance with Mr. McCain.

The Arizona senator, who has made no bones about courting independent swing voters and moderate Democrats, ticked off several Supreme Court cases, including the case of Susette Kelo.

"Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way," he said. "And this power play actually got the constitutional 'thumbs-up' from five members of the Supreme Court."

He ridiculed the case of the California man who filed a suit against the entire U.S. States Congress — "which I guess made me a defendant, too — to remove the words "Under God" in the Pledge of Allegiance.

"The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were — and I quote — 'impermissible.' ….

"I have a feeling this fellow will get wind of my remarks today — and we're all in for trouble when he hears that we met in a chapel," Mr. McCain said, drawing laughter.

The senator said some controversial court decisions fall under the rubric of "judicial activism," and indicate that the balance of power designed by the Founding Fathers is out of whack.

"Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered "settled law," and everything else is fair game," he said.

The move away from the strict interpretation of the Constitution has doubled back on Congress, where contentious confirmation hearings for judicial nominees is now the norm.

"We've seen and heard the shabby treatment accorded to nominees, the caricature and code words shouted or whispered, the twenty-minute questions and two-minute answers," he said. "No tactic of abuse or delay is out of bounds, until the nominee is declared 'in trouble' and the spouse is in tears," Mr. McCain said, referring to the latest Supreme Court appointee Samuel Alito, whose wife broke down during the congressional hearing.

But the breakdown stretches much farther, the senator said.

"Presidential nominees to the lower courts are now lucky if they get a hearing at all. … At this moment there are 31 nominations pending, including several for the Fourth Circuit Court of Appeals that serves North Carolina," he said, noting that a third of the Fourth Circuit seats are vacant.

"But the alarm has yet to sound for the Senate majority leadership. Their idea of a judicial emergency is the possible confirmation of any judge who doesn't meet their own narrow tests of party and ideology. They want federal judges who will push the limits of constitutional law, and, to this end, they have pushed the limits of Senate rules and simple courtesy," he said.

Mr. McCain pointed out his role in the so-called "Gang of 14," a bipartisan group of senators that "got together and agreed we would not filibuster unless there were 'extraordinary circumstances.'

"This parliamentary truce was brief, but it lasted long enough to allow the confirmation of Justices [John] Roberts, Alito, and many other judges. And it showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger," he said.

Mr. McCain took aim at his Democratic opponents, criticizing them for their opposition of Chief Justice Roberts. He lambasted Sen. Barack Obama for his opposition, citing the Illinois senator's words that a Supreme Court justice "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," Mr. McCain said.

"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."

He noted that when President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, "I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise."

Mr. McCain said he would give great care to the nomination of judges, and pledged to restore the core beliefs of the judicial system.

"My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice," he said.

Read the entire article.

To underscore just how dangerous judicial activism is to our country, one need only look to the first decision mentioned by McCain, the Kelo decision. If you are not familiary with the Kelo decision, you can read about it here. A group of five activist Supreme Court judges rewrote the plain language of the 5th Amendment in possibly the worst Supreme Court decision of the past century. The effect was to take away the limits on government at all levels to allow them to take private property upon a minimum of pretext and give it to commercial interests. It is both an invitation to corruption and a decision whose effects are being felt very much by the poor and by minorities. This from a recent article in the Orlando Sentinel:

Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 million to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban-renewal takings since World War II.

The fact is that eminent-domain abuse is a crucial constitutional-rights issue. . . .

Current eminent-domain horror stories in the South and elsewhere are not hard to find. At this writing, for example, the city of Clarksville, Tenn., is giving itself authority to seize more than 1,000 homes, businesses and churches and then resell much of the land to developers. Many who reside there are black, live on fixed incomes, and own well-maintained Victorian homes. At a City Council meeting earlier this month that overflowed with protesters from the neighborhood, local resident Virginia Hatcher charged that that the threat of forcing "people from their homesteads of many years" through "underhanded political manipulation" was not only "un-Christian" but had created a climate of fear.

Eminent domain has always had an outsized impact on the constitutional rights of minorities, but most of the public didn't notice until the U.S. Supreme Court's 2005 ruling in Kelo v. City of New London. In Kelo, the court endorsed the power of a local government to forcibly transfer private property to commercial interests for the purpose of "economic development." The Fifth Amendment requires that such seizures be for a "public use," but that requirement can be satisfied, the court ruled, by virtually any claim of some sort of public benefit. Many charge that Kelo gives governments a blank check to redistribute land from the poor and middle class to the wealthy.

Few protested the Kelo ruling more ardently than the National Association for the Advancement of Colored People. In an amicus brief filed in the case, it argued that "[t]he burden of eminent domain has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and economically disadvantaged." Unfettered eminent-domain authority, the NAACP concluded, is a "license for government to coerce individuals on behalf of society's strongest interests."

. . . Four years ago, the city of Alabaster, Ala., used "blight" as a pretext to take 400 acres of rural property, much of it owned by low-income blacks, for a new Wal-Mart. Many of the residents had lived there for generations, and two other Wal-Mart stores were located less than 15 miles away. Several of the land owners, particularly those who lacked political clout and legal aid, ended up selling out at a discount. . . .

Read the entire article.

(H/T Instapundit)

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