Judging McCain on judges

Earlier this week John McCain gave a speech on judicial philosophy and the kind of judges he wants to appoint. Here's a key bit:

In America, the constitutional restraint on power is as fundamental as the exercise of power, and often more so. Yet the framers knew that these restraints would not always be observed. They were idealists, but they were worldly men as well, and they knew that abuses of power would arise and need to be firmly checked. Their design for democracy was drawn from their experience with tyranny. A suspicion of power is ingrained in both the letter and spirit of the American Constitution.

In the end, of course, their grand solution was to allocate federal power three ways, reserving all other powers and rights to the states and to the people themselves. The executive, legislative, and judicial branches are often wary of one another's excesses, and they should be. They seek to keep each other within bounds, and they are supposed to. And though you wouldn't always know it from watching the day-to-day affairs of modern Washington, the framers knew exactly what they were doing, and the system of checks and balances rarely disappoints.

There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. 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. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

The speech won high marks from National Review editors and contributors. One of the latter, a member of McCain's judicial advisory committee who did not help write the speech, comments: "McCain's second political objective was to assuage social conservatives' worries about him (remember the Gang of Fourteen?), but without the sabre-rattling which alienates independents and fence sitters. This task is intrinsically difficult, like trying to make chardonnay go with red meat. The task is also very delicate, and success at it depends upon data yet to be obtained: do social conservatives and independents buy it? Time will tell, but it seems to me that McCain's speech is close to the mark." [Update: Regarding the Gang of 14, see also here.]

A different observation comes from Douglas Kmiec, who, to oversimplify a bit, agrees with the folks McCain is trying to comfort when it comes to judges but who is nevertheless supporting Barack Obama for president:

McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process.

Yet another take comes from Jack Balkin, who is not among the judicial thinkers McCain is trying to impress but who nevertheless says McCain's speech fits very comfortably in the history of American politics:

Railing against unelected judges -- no matter how many of them your party may have appointed -- is as American as apple pie.