« Home | Federalist Society Lawyer's Division Conference » | Professor Kmiec on Gay Marriage » | Last Night's Debate and an Upcoming Event » | Marriage Amendment Debate Webcast » | Upcoming Death Penalty Debate » | Justice Scalia Debates the ACLU on Civil Liberties... » | Reflections from Justice Wilcox » | Now that's my idea of an afterlife! » | The Wisconsin Marriage Amendment: The Debate Over ... » | The Major Court Battles on the Horizon »

McCain at the Federalist Society Convention

Confirm Them has linked to the MSNBC site that reproduced Senator John McCain's speech Thursday at the Federalist Society convention. Confirm Them quoted an interesting portion...
They [the founders] enumerated certain baseline individual rights, but instructed that this list was not exhaustive, and they provided that the rights and powers that were not enumerated were reserved strictly to the states and the people.

They created courts of limited jurisdiction, which could hear only "cases or controversies" "arising under" the Constitution. The further development of the common law we inherited from England, and the scope of the individual rights reserved to the states, were questions left to the individual states, removed from the jurisdiction of the federal courts.

By limiting government in these ways, the founders attempted to ensure that no one branch could dominate the others, that the federal government could not usurp state powers, and that one individual asserting his rights could stop the entire machinery of government from taking away his freedom.

Why has the appointment of judges become such a flashpoint of controversy in the past twenty years or so? When you understand our system in the way I've just described, when you see the wisdom in it and the humility it requires of public servants, it's easy enough to understand why we are so concerned that the judges we appoint share that understanding of the nature and limits of power.

Some basic attributes of judges follow from this understanding. They should be people who respect the limited scope afforded federal judges under the Constitution. They should be people who understand that the founders' concern about the expansive tendency of power extended to judicial power as well as to executive or legislative power. They should be people who are humbled by their role in our system, not emboldened by it. Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power. For that reason, a judge’s decisions must rest on more than his subjective conviction that he is right, or his eagerness to address a perceived social ill.

This truth was well understood by Chief Justice Roberts'’ mentor, my fellow Arizonan Chief Justice William Rehnquist, whose passing we mourn. During his 33 years on the Court, Justice Rehnquist earned our respect for his sharp intellect, his strong sense of fairness, and his enormous devotion to the Court and to public service. His profound understanding of the balance inherent in federalism, between the states and the federal governments, as well as between the three federal branches—left us a strong legacy.

It’s a legacy I hope will be respected by the judges President Bush has nominated, and in whom we have vested great trust to discharge their judicial duties with prudence and principle.

I am proud of my role in persuading my fellow Republican Senators to respect the limits of our own power and not abolish the filibuster rule--changes which promised to empower a different majority under another president to impede our cause of limited government and constrained judicial power. Instead we have focused with considerable success on assuring that a high percentage of the President's nominees have been confirmed. And those judges and justices will interpret our Constitution as our founders intended.

The efforts we undertook a year and a half ago, working with Senators of both parties, who were concerned about abuses of the filibuster tradition, was resulted in a substantial increase in the confirmation of the President's Circuit Court nominees. Priscilla Owen, Janice Rogers Brown, and Bill Pryor have all been confirmed, and this year Brett Kavanaugh was confirmed to the US Court of Appeals for the DC Circuit. The President nominated these individuals; I supported each of their nominations; and we fought successfully to confirm them. President Bush now has a higher percentage of his nominations confirmed to both the District Courts and the Circuit Courts than did President Clinton during his presidency. I am also proud to see Chief Justice Roberts and Associate Justice Alito serving with such distinction on the Supreme Court.

They are good people, deserving people, and their decisions will be grounded in the text and history of the statute, regulation, or constitutional provision under consideration, and interpreted narrowly in light of the specific facts of the case before them.

Of course, to paraphrase Mr. Madison, if angels wrote laws, we wouldn't need judges at all. Unfortunately, angels don't write laws; Congress does. And we're called a lot of things, but no one would mistake us for angels. Too frequently, we write laws that are unclear, we vote on laws we haven't adequately debated, and sometimes, I am sad to report, we vote on laws we haven't even read. When we pass laws like that, we leave too much to the discretion of our federal judges. We fail in our role to ensure that the judiciary's scope is limited. As we debate reforms to the practices and procedures of Congress, I hope, particularly we Republicans, will take an honest look at how we fail to fulfill our constitutional responsibilities when we write laws that invite judicial activism and misinterpretation.

Why these restraints on federal judges? Because the structure of our government, by itself, will not ensure our freedom. That structure, while it reduces the likelihood of tyranny, is only as strong as our commitment to the rule of law, and the rule of law depends largely on our judiciary's commitment not to impose its will arbitrarily on us.

That's why the appointment of federal judges has become such a flashpoint issue for so many. Judges stand in our system where our commitment to limited government meets our commitment to the rule of law. To the extent that judges impose their own will, they undermine both the structure of limited government and the rule of law.
I'd expect the other 2008 presidential hopefuls to talk about the issue of the judiciary in the near future as well.