When voters are asked to name the top issue they consider when weighing their choice in the presidential election, we generally hear about the economy, the war in Iraq, healthcare, national security, and energy policy. Those are, to be sure, all very important considerations.
And then there’s my top issue: the federal judiciary.
I realize there are small pockets of Dems who might be inclined to support John McCain, despite his conservative record and regressive agenda, possibly because the candidate these Dems preferred in the nomination fight came up short. But before they do, they should at least take a minute to read Jeffrey Toobin’s brief item in the New Yorker about McCain and his vision for the Supreme Court.
Toobin highlighted McCain’s speech on the judiciary on May 6, the day of the Indiana and North Carolina primaries, when he knew his remarks would be largely ignored by the political world, and he could deliver a right-wing message with minimal fear of consequence. In his speech, McCain emphasized a 2005 decision regarding a case out of Missouri, in which the justices referenced “international law” and the “meaning of life.” McCain said he was offended by “the tradition of ‘penumbras,’ ’emanations,’ and other airy constructs the Court has employed over the years.”
The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Anthony M. Kennedy’s opinion overturned the sentence and held that the Constitution forbids the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” refers to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 have been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, the United States apparently belongs on this dismal list.
Nor were his references to penumbras and emanations accidental. Those words come from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the Justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It comes from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade, and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right — an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teen-agers.
The question, as always with McCain these days, is whether he means it. Might he really be a “maverick” when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush’s judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement.
McCain is making a promise to the far right that he would likely be in a position to keep.
There is already an unyielding conservative bloc of four (Roberts, Alito, Scalia, and Thomas). John Paul Stevens is 88. Ruth Bader Ginsburg is 75 and has had health problems.
McCain has vowed to expand the hard-right contingent, and in this case, give it a rigid five-person Supreme Court majority. That would mean, of course, a predictable Supreme Court majority that would embrace a very conservative line on reproductive rights, civil rights, criminal justice issues, gay rights, church-state separation, unions and worker rights, environmental regulations, separation of powers, and limits on the power of corporations.
And that’s just at the Supreme Court. A president McCain — who has supported every conservative Bush nominee, not to mention Reagan-era nominees like Robert Bork — would also stack federal district and appellate courts with similarly conservative judges. Given that the Supreme Court only hears a small percentage of the cases appealed to the justices, these lower courts have a huge impact as well.
Don’t let anyone tell you this doesn’t matter, or that the changes would be unlikely to have an effect on our everyday lives. As Toobin noted, “It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: ‘It is not often in the law that so few have so quickly changed so much.’ And more change is likely to come.”
Ed Kilgore summarized the broader dynamic very well:
It’s been obvious for a while that John McCain’s presidential ambitions depend on maintaining the exaggerated and ephemeral reputation for “moderation” and “independence” bestowed on him by the news media in 2000, while quietly reassuring conservative activists that he’s their man. That’s why exposing the dishonesty and implicit extremism of McCain maneuvers like his Wake Forest speech are important. And it’s also why Hillary Clinton supporters who think it makes sense to help McCain become president are actually in danger of betraying everything the New York Senator stands for.
Something to keep in mind.