The Volokh Conspiracy
[Jonathan Adler, February 4, 2008 at 6:16pm] Trackbacks
McCain & Romney On Judges:

The Federalist Society has posted statements by the two leading GOP candidates -- John McCain and Mitt Romney -- on judicial philosophy as part of their "Originally Speaking" on-line debate series here. According to the site, they will add contributions by the other remaining GOP candidates and the Democratic contenders as they are received.

Related Posts (on one page):

  1. An Overlooked Potential Benefit of Conservative Distrust for McCain:
  2. The Downside of Mavericks:
  3. Assessing McCain:
  4. McCain & Romney On Judges:
  5. Calabresi & McGinnis on McCain & Judges:
  6. John McCain and the Judiciary:
  7. Novak on McCain & Judicial Nominations:
  8. Levy on McCain and Judges:
  9. McCain & Judicial Nominations:
ddd:
Yeah, seriously, I sure wish those unelected judges would quit usurping all the freakin' power already!

Why does every right wing candidate find it necessary to dish out this tripe? Seriously, is it just "overturn Roe v. Wade" code or do they really believe that judges can just do what the words say?
2.4.2008 6:38pm
GV:
I know these statements are supposed to be devoid of substantive content, but can anyone explain what McCain's statement here is supposed to mean:

This is not a new position. I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.

How does deference to the legislature go in the same paragraph as supporting a personal rights view of the second amendment? If you believe the second amendment secures personal rights, you’re also going to believe that the amendment should limit the choice of legislatures.

Why can’t McCain just say what he means: He doesn’t like judges coming to liberal results. But he is fine with judges coming to conservative results. It has nothing to do with “deference to legislatures,” “federalism,” “activism” or whatever other meaningless catch phrase conservative politicians have decided to jump on that week.

As for Romney’s equally vacuous statements, this stood out to me:

The judges I nominate will recognize, as I do, that as Justice Scalia once said, the Court ought not take the field as some kind of 'junior-varsity Congress.'

I could be (and I probably am) wrong, but I don’t think Scalia has ever said this. Now, he has described the sentencing commission as a JV Congress. But I don’t think he has ever said the Court ought not act as a JV Congress.
2.4.2008 7:34pm
BremertonLegal (mail):
ddd: I do believe that judges can aspire to be judges, and with great though imperfect success. Our system presupposes this, that judges attempt to actually perpetuate a system of laws and not of men (or, more particularly, of their own desires), acting with deference to the people, their legislators, and applicable precedent. On the other hand, I do understand that those who believe that human nature itself is not immutable, but is rather improvable, find such a system untenable.
2.4.2008 7:38pm
ddd:
BremertonLegal: I understand your perspective, but surely you'll agree that courts are often called upon to interpret ambiguous provisions and have little to draw on in the way of legislative history or precedent. They must also grapple with multiple interpretive techniques, each of which may draw contradictory conclusions from identical wording. I think the bottom line is that those judges must make policy choices or find a way to deflect the question, and deflection is not always a viable option.
2.4.2008 7:55pm
Bert Camapaneris (mail):
If you believe the second amendment secures personal rights, you’re also going to believe that the amendment should limit the choice of legislatures.

Yes, but in the case of the second amendment, "your" argument will be that the legislature is constrained by the constitution. In abortion matters, "your" argument is that the legislatures are constrained by an absurd judicial opinion with no basis in the constitution. I trust, with further reflection, you will recognize the distinction.
2.4.2008 7:56pm
Rob S. (mail):
I enjoyed humorous attempt on the part of Federalist Society to remain non-partisan. I could only imagine the response that they would receive from a democratic candidate.
2.4.2008 7:57pm
Jim Hu:
I share the concerns about BiCRA and the first amendment, and I have wondered if McCain would have a litmus test based on upholding McCain-Feingold. However, if he does, the did not apply it to confirmation of Roberts and Alito, as far as I can tell... at least with respect to those aspects that were covered by FEC v Wisconsin Right to Life.

But a litmus test for nomination might fall under a different standard than a litmus test for confirmation, based on deference to the Presidential role in making nominations. I have not followed the various debates closely enough to know whether McCain has been asked specifically about judicial nominations and BiCRA. Anyone know?
2.4.2008 8:02pm
gregh (mail):
Jim Hu, Somehow he has not been asked, or has and gave a response so vague that none of his defenders have used it. This issue is being discussed all over the conservative/Republican/libertarian sites, and no one has any links to anything he has said re the two that I've seen.
Something I'm not completely sure of, but it seems that he's voted for every nominee that's come by since he's been in the Senate, from Bork to Ginsburg and Breyer to Alito and everyone in-between. Anyone know of a single nominee he's voted against?
2.4.2008 8:20pm
GV:

Yes, but in the case of the second amendment, "your" argument will be that the legislature is constrained by the constitution. In abortion matters, "your" argument is that the legislatures are constrained by an absurd judicial opinion with no basis in the constitution. I trust, with further reflection, you will recognize the distinction.

Oh, so what you’re saying is that you must first have some sort of theory on what the constitution means to resolve issues and saying things like “deferring to the legislature” isn’t actually a theory at all but a conclusion you slap on a result after you apply your constitutional theory? Oh, okay. I wonder if, upon further reflection, it will occur to me why so many conservative politicians (like McCain here) talk about “deferring to the legislature” as if it is a theory of constitutional interpretation then.
2.4.2008 9:05pm
Oren:
Yes, but in the case of the second amendment, "your" argument will be that the legislature is constrained by the constitution. In abortion matters, "your" argument is that the legislatures are constrained by an absurd judicial opinion with no basis in the constitution. I trust, with further reflection, you will recognize the distinction.
Yes, the distinction is quite clear. Arguments that the words "well-regulated" foreclose the legislature's freedom to enact regulation are clearly correct while arguments that the words "due process" foreclose the legislatures right to dictate what goes on inside women's bodies is clearly absurd.

Both phrases ("well regulated" and "due process") are equally ambiguous and pretending otherwise is to somehow imagine that the Constitution is a magically self-explanatory document on which it is impossible to disagree.
2.4.2008 9:25pm
Alec:
Moreover, what Second Amendment argument is he advancing? He seems to presuppose incorporation; he refers to the power of state legislatures in the same paragraph.
With all due respect to the Federalist Society members who have endorsed McCain (apparently as the lesser of two viable evils), there is absolutely no guarantee that McCain would be able to deliver on this "promise" once the nominees are sent to the senate.
BTW, if McCain does win, you will be guaranteed to add another Democratic seat to the senate. Why is that you ask? The governors of Illinois, New York and Arizona are all Democrats. They were all either elected for the first time in November of 2006 or re-elected that year(remember, when conservatives lost in a massive landslide?). The Republicans will be disfavored in the next two election cycles. A victory for Clinton or Obama will not affect the balance of power in the senate for another two years. And frankly, the likelihood of the fractured GOP putting a viable Republican on the ballot in the increasingly Democratic states of Illinois and New York is, well, de minimis.
Whatever the results in November, the conservative legal revolution is, best case scenario, dead, worst case scenario on hold for McCain's first term. I hope to be dancing on its grave.
2.4.2008 10:08pm
Brett Bellmore:

Arguments that the words "well-regulated" foreclose the legislature's freedom to enact regulation are clearly correct


Oren, let the legislatures regulate the heck out of the militia, so long as they leave the right of the people to keep and bear arms uninfringed. Some of us actually pay attention to which subjects are modified by which adjectives in the 2nd amendment...
2.4.2008 10:17pm
Oren:
Brett, I would imagine that regulating a militia implies regulating the sort of arms they can bear. I have no problem with the characterization of the 2A as bestowing upon the individual the right to bear arms, only the idea that this concept is immune from any regulation whatsoever.
2.4.2008 10:22pm
wuzzagrunt (mail):
Oren wrote:
Brett, I would imagine that regulating a militia implies regulating the sort of arms they can bear. I have no problem with the characterization of the 2A as bestowing upon the individual the right to bear arms, only the idea that this concept is immune from any regulation whatsoever.

Regulating the kinds of arms the militia can (or must) bear is a very different matter than infringing on the right of the people to keep and bear arms. Assuming a ruling in Heller in favor of a strong individual right, the idea that RKBA will be "immune from any regulation whatsoever" is nothing more than a scary story that liberals use to scare their children into behaving. Even if it were true--and it most definitely is not--it would be another 50 years before we got to that place.
2.4.2008 11:20pm
Christopher Cooke (mail):
I found both candidates' statements to be utterly vapid, "I support judges who interpet and not make the law" kind of nonsense. Far more telling is McCain's preference for Roberts over Alito (which I agree with). But now he is being told to deny that, and say "Roberts and Alito" when asked who might be his ideal nominees.
2.5.2008 12:31am
Oren:
Regulating the kinds of arms the militia can (or must) bear is a very different matter than infringing on the right of the people to keep and bear arms.
Are you suggesting that my right to bear arms in the militia may be more strictly limited than my right to bear arms personally? It wouldn't make much sense if Congress can ban full automatics in the militia but may not ban them for individuals.
Assuming a ruling in Heller in favor of a strong individual right
A ruling I would welcome.
the idea that RKBA will be "immune from any regulation whatsoever" is nothing more than a scary story that liberals use to scare their children into behaving.
Perhaps. On the other hand, reading some of the writings by the RKBA folks would give you the impression that RPGs ought to be legal (of course, the bullshit from the far left is also quite unappealing).

The 2A is just another issue where the center has failed to hold in American politics.
2.5.2008 12:57am
Brett Bellmore:
Oren, first, there are an enormous number of ways that the militia can be "regulated" without gun control. For instance, were a state to pass a law requiring everyone between the ages of 18 and 45 to own and maintain in working condition a specified model of assault rifle, THAT would be perfectly consistent with the spirit behind the 2nd amendment. And yet, it wouldn't logically require a state to ban ownership of other firearms, would it? Frequency and the nature of required firearms training, uniforms, there are all manner of militia regulations which would have no impact at all on the right to keep and bear arms.

But a certain sort of person reads that preface, and sees in it authority to do exactly what the main body of the amendment prohibits.
2.5.2008 7:46am
wuzzagrunt (mail):
Oren wrote:

Are you suggesting that my right to bear arms in the militia may be more strictly limited than my right to bear arms personally? It wouldn't make much sense if Congress can ban full automatics in the militia but may not ban them for individuals.

That seems obvious to me. The idea of a militiaman being permitted to show up for duty with an old drilling, that is (2) 24 bore shotgun barrels over a 7x33 mm. Kurz rifle barrel, is pretty preposterous. Requiring functional, militarily useful firearms, in common chamberings, would be a "common sense" regulation that wouldn't necessarily apply to personal/home defens. If you want to use great-great grandad's muzzle-loading squirrel gun to ward off burglars, that's your own lookout.
2.5.2008 8:20am
Oren:
Brett and Wuzz, I specifically asked about a regulation forbidding the militia to posses (say) automatic weapons. Does Congress have the power to forbid that weapon in service to the militia? If yes, then we are back at the absurd situation where a member of a duly formed organized militia can have his choice of arms restricted more than a individual. If Congress cannot pass this simple restriction, the ability to regulate the militia is meaningless.

I think the left can live with an individual RKBA so long as they do not think they are signing on to an unlimited view of that right.
2.5.2008 1:15pm
Dilan Esper (mail) (www):
I think the left can live with an individual RKBA so long as they do not think they are signing on to an unlimited view of that right.

The truth about the American left (and I am a card carrying member) is as follows:

1. There are a significant number of American liberals who want to ban handguns entirely, as well as any "military-style" weapons (yes, I know that is hopelessly vague, but I am trying to do justice to the position). Probably a small number might want to ban long guns too, but I think they aren't a very significant number. Those liberals aren't going to be able to live with even a limited individual right, because such a right would probably make it impossible to ban handguns.

2. There are also a significant number of American liberals who believe in pretty liberal gun rights (probably more than conservatives might imagine). There may be some differences with conservatives-- I don't think that most liberals get as up in arms about waiting periods or gun registration as many conservatives do. But in terms of whether you should be able to own guns and whether you should be able to carry them, this group would say that you should be able to do both. This group would have no problem with an individual right, so long as it didn't foreclose all or nearly all regulation.

3. There's a lot of liberals who don't really care about this issue, because they don't personally own guns, don't want to, and live in cities where there is a significant amount of gun control. The question-- which I don't know the answer to-- is whether these folks would get upset if their local gun control ordinances were struck down. I have no idea.

But that's a fairly accurate thumbnail summary of where the left is on this issue.
2.5.2008 1:26pm
Oren:
Dilan, I'm firmly in camps 2 and 3 - I believe in a RKBA (<50cal, no explosive ordinance), a presumption towards granting CCW permits and preemption for peaceable transit. That said, I just don't feel strongly enough about it to make it a real deal-breaker for a political candidate. It's not a matter of belief but of relative weighting of those beliefs.

I believe that this is likewise the case for the majority of Americans - whatever they believe about guns just isn't all that important to 'em.
2.5.2008 3:09pm
wuzzagrunt (mail):
As long as we are arguing the 2nd Amendment--and not "McCain and Romney on judges"--it is not completely OT to mention that the Respondent's brief has been filed for DC v. Heller. Several Conspiritors are cited in the brief. Read it and weep, hoplophobes.
2.5.2008 8:52pm
wuzzagrunt (mail):
Oops! Forgot the link.

2.5.2008 8:56pm
wuzzagrunt (mail):
I can't get the linky to do what I want, so smack the second line up against the first line, and squish it into your address bar.

http://www.gurapossessky.com/news/
parker/documents/07-0290bs.pdf

link
2.5.2008 9:08pm
Oren:
Wuzz, but the 2A and Roe are perfect example of the vacuous nature of the debate on judges. Both sides want judges that will interpret the law instead of 'legislating from the bench' but neither is at all willing to admit that it is even theoretically possible that two reasonable human beings could differ on that interpretation. It's maddening at times!
2.5.2008 10:37pm
wuzzagrunt (mail):
I don't see the comparison. To believe the 2nd Amendment does not guarantee an individual right requires one to engage in some pretty heavy mental gymnastics. Whether it should ever have been enshrined in the BoR, is a different question. A question of policy preferences. Reasonable people can disagree on whether the 2A is a good idea.

Also notice that the right to keep and bear arms is shorthanded to "the Second Amendment", while the right to abortion is abbreviated to "Roe v. Wade". One is in the Constitution, and the other is a Supreme Court decision (i.e., not in the Constitution).

The Constitution leaves many issues for the people (through their elected representatives) to decide. The implied right to privacy and its attendent freedom from government interference/coersion in private medical matters, is not an unreasonable position. If/when a fetus is a discrete human being, entitled to constitutional protections, is properly left to the people to decide. Not that the people will decide it "better", but that's where the power should lie...IMO.

When the courts disregard enumerated rights that (coicidentally) conflict with the judges' policy preferences, and find implied rights that (again, coicidentally) comport with their policy preferences, it is not unfair to question their respect for the Constitution they swore to uphold.
2.5.2008 11:44pm
Oren:
I don't see the comparison. To believe the 2nd Amendment does not guarantee an individual right requires one to engage in some pretty heavy mental gymnastics. Whether it should ever have been enshrined in the BoR, is a different question. A question of policy preferences. Reasonable people can disagree on whether the 2A is a good idea.
Nice straw man but, as I've said ad nauseum, the 2A might protect an individual RKBA but still allow for the myriad reasonable restriction (which is not all of them, by any stretch) that the NRA insists it forbids. This position is best explained by the SG in DC v. Heller is eminently reasonable (link).

Also notice that the right to keep and bear arms is shorthanded to "the Second Amendment", while the right to abortion is abbreviated to "Roe v. Wade". One is in the Constitution, and the other is a Supreme Court decision (i.e., not in the Constitution).
I could have sworn the Constitution said something about enumerated rights not being construed to disparage unenumerated rights.

The Constitution leaves many issues for the people (through their elected representatives) to decide.
It also places some issues beyond the power of the legislature. We are arguing over the position of that boundary, not its existence.

The implied right to privacy and its attendent freedom from government interference/coersion in private medical matters, is not an unreasonable position.
I would go further and say that the notion of government coercion in medical matters is, on its face, an unreasonable extension of government power and is fundamentally contrary to the notion of liberty. A system of government where "the people" may not search my house without a warrant but may regulate my womb with impunity is in contradiction with itself.

If/when a fetus is a discrete human being, entitled to constitutional protections, is properly left to the people to decide.
The people have not been granted the power to deny citizens the right to control their own bodies. Full stop.

Not that the people will decide it "better", but that's where the power should lie...IMO.
Again, there's a question of power over what. The structure of the Constitution is clearly one of limited government and so one could postulate that, by default, 'the people' have no power to regulate X unless the Constitution explicitly allows that power.

When the courts disregard enumerated rights that (coicidentally) conflict with the judges' policy preferences, and find implied rights that (again, coicidentally) comport with their policy preferences, it is not unfair to question their respect for the Constitution they swore to uphold.
Again, the ninth amendment explicitly states that enumerated rights and non-enumerated rights have equal weight in matters Constitutional. I have no love whatsoever for judges that disregard enumerated rights but, at the same time, I refuse for a second to relegate the non-enumerated rights to some second-class status (or worse). Those two position do not appear to be at all contradictory to me.

As far as policy preferences go, I think it is folly to imagine that (say) deciding on the reasonableness standard in a 4A case can be done in some magical normative vacuum independent of one's policy preferences with regards to criminal law. The words in the Constitution are often vague and the only way to interpret them is by engaging the ideas behind them - a necessarily subjective thing. If you can come up with an objective way of interpreting the meaning of the phrase "unreasonable search and seizure" that is independent of any policy opinion, I'm all ears. AFAIK, no SCOTUS judge or 4A scholar has ever done that (EV will smack me down if I'm wrong, I hope).
2.6.2008 3:18am
Oren:
To add just one more close thought, consider that much of the opposition to the bill of rights centered around the fear that a list of specific list of rights would increase government power by implicitly allowed anything not listed. Hamilton wrote about it specifically in federalist 84:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? (my emph)


Madison was even more direct:

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. [which eventually became the 9A]


And of course, the great bugaboo of the right, Griswold v. Connecticut (all the enmity towards Roe properly belongs with Griswold since the former is merely the logical extension of the latter)
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
2.6.2008 3:32am
Oren:
Gah, messed up the last quote. Should be
[T]he Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.
2.6.2008 3:40am
David M. Nieporent (www):
I found both candidates' statements to be utterly vapid, "I support judges who interpet and not make the law" kind of nonsense. Far more telling is McCain's preference for Roberts over Alito (which I agree with). But now he is being told to deny that, and say "Roberts and Alito" when asked who might be his ideal nominees.
First, whatever he may have said privately to a small group of people, he voted to confirm both of them.

Second, do you think John McCain, or anyone other than a few thousand lawyers/law professors, know the difference between Roberts and Alito in terms of their jurisprudence? To the extent McCain sees a difference, he sees a difference in how controversial they are, nothing more.
2.6.2008 5:07am
wuzzagrunt (mail):
Sorry kids, I don't believe your right to privacy includes a right to kill babies. You may be shocked to learn that I'm not the only person who feels that way. And if it does, than my right to privacy includes the right to buy machine guns and RPGs without filling out any pesky gummint paperwork. No babies were ever harmed in the purchase of any of my guns.
2.6.2008 6:21pm
Oren:
Wuzz, the right at stake is control over my own body - clearly a right that Founders held dearly and one that they probably held was far too obvious to enumerate. Thankfully, of course, they told us that enumerated rights do not disparage unenumerated rights. It doesn't matter how many people agree with you on the matter (unless you are delusional enough to think you can get an amendment ratified) the Constitution just doesn't give the government that power.

If you want to take the position that, normatively, the majority ought to be able to pass laws banning abortion/guns because that's the democratically legitimate thing to do then fine but it's just not the system of government we have.
2.6.2008 8:44pm
wuzzagrunt (mail):
Unenumerated rights are entitled to considerable weight, but the fact that a right is unenumerated means that it has to be generally (if not universally) recognized, in order to be protected. Self defense is a good example. Rights, enumerated and otherwise, can be regulated—and all are.

In case you are being intentionally dense, I'm talking about the enumerated rights of the third party to any pregnancy. I wouldn't presume to tell a woman that she must bring a malignant, cancerous tumor to full term. Whether and if/when a fetus might be entitled to constitutional protection is best left to the people to decide, IMO. You may still have your tonsils removed without my permission.
2.7.2008 12:16am

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