"They will appoint to the federal bench judges who are intent on achieving political changes that the American people cannot be convinced to accept through the election of their representatives.
I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend."
From John McCain's CPAC Speech February 07, 2008
As Susan Jacoby, in The Activist Judge Myth says, the phrase "activist judge" is code speak used by the right wing to attack liberals, adding that "the assault on an independent judiciary has always been an integral part of the Rovian political strategy that put President George W. Bush in office."
So, when McCain, on the campaign trail, attacks Democrats on the issue of the judiciary, it calls for a close examination of the record. (It also serves as a reminder to tantrum throwing Hillary supporters to think through on their threats to not support Obama once he gets the nomination.)
Ironically, the GOP trend of appointing right wing judges would probably lead to doing away with what is perhaps McCain's calling card as a so-called "reformer," the McCain-Feingold campaign finance laws.
Jacoby continues with these words.
The truth is that the real issue is not the activism of judges but the principles upon which they are acting.
In May 2005, after the Republican majority threatened to change the rules of the Senate to eliminate the filibuster, Senate Democrats agreed to a "compromise" in which they promised to employ the filibuster only in "extraordinary" circumstances. Senate Republicans promised—well, actually they promised nothing except that they would not change the rules of the Senate to eliminate the filibuster at that particular moment.
This so-called compromise freed the Senate to confirm some of Bush’s worst appellate court appointees—judges lionized by the Christian Coalition and Focus on the Family—and allowed John G. Roberts and Samuel A. Alito to sail through their Supreme Court confirmation hearings without answering any discomfiting questions. The result is a high court one vote away from being dominated by judges whose view of government is conditioned by their conviction that government power is bad—except when exercised to tear down the barrier between church and state or to conduct foreign policy and gather domestic intelligence without independent oversight.
Roberts and Alito now form a voting bloc with Antonin Scalia and Clarence Thomas. All are, in fact, activist judges on behalf of right-wing ideology. They believe in states’ rights—unless a state wants to do something that is anathema to the right
.
So, who are these Bush judicial appointees? And how did McCain vote on them?
Here are some.
Judge Leslie H. Southwick with a vote to confirm by McCain, (as well as by Joe Lieberman) in spite of Southwick's expressed hostility to civil rights.
About this judge, as PFLAG pointed out in their letter to the Judiciary Committee
There is absolutely nothing in Judge Southwick’s troubling record, written responses, or testimony to the committee to indicate that he can fairly judge cases involving gay, lesbian, bisexual or transgender families or any other minority parties.
As a member of the Mississippi Court of Appeal, Judge Southwick joined a majority opinion which took custody of an eight-year-old child away from her mother, citing in part the mother’s "lesbian home" and "homosexual lifestyle" as justification for the decision. Additionally, Judge Southwick was the only other judge to join a concurring opinion by Judge Payne that unnecessarily referenced the state’s probation on gay and lesbian adoption, despite the fact that this was not an adoption case, using the phrase "the practice of homosexuality" throughout. Most disturbingly, the concurrence states that even if the mother’s sexual acts are her choice she must accept the fact that losing her child is a possible consequence of that choice.
It was also pointed out during his confirmation hearings that "as a Mississippi appeals judge. In one case, he upheld the reinstatement with back pay of a white state employee who had been fired for using a racial epithet (i.e., ""a good ole nigger") to describe a black colleague."
Another example.
Thomas B. Griffith
Also supported by McCain to be a judge on the U.S. Court of Appeals, in spite of a record
on discrimination and serious ethical lapses (including practicing law with a suspended license in D.C. and without a Utah license in Utah).
As Counterbias pointed out
During President Bush’s first term, Mr. Griffith was appointed to serve on the Commission on Opportunity in Athletics. The Commission was created to determine if current standards regarding the application of Title IX of the Education Amendments on 1972 should be revised for sports. The Title IX provision was intended to expand opportunities for girls and women in education, especially athletics. Indeed, it has been successful in doing so.
Mr. Griffith made a recommendation so extreme it was overwhelmingly rejected by the Commission. He proposed eliminating a test that has long been used to verify compliance with Title IX. The National Coalition for Women and Girls in Education noted that the recommendation "... would have devastated current Title IX athletics policies and reduced the athletic opportunities and scholarship dollars to which woman and girls are legally entitled."
Under the test, a school is in compliance with Title IX if it demonstrates that the athletic opportunities for males and females is substantially proportionate to each sex’s representation in the student body. Mr. Griffith recommended abolishing this verification, saying, "...it is unfair, and it is wrong." He rejected the opinion of all eight federal appeals courts, who have upheld the constitutionality of the test. When other Commission members pointed this out, Mr. Griffith replied that the courts "were wrong."
However, the Department of Education later stated the "test...has worked well" and "is thus a valid, alternative way for schools to comply with Title IX." Mr. Griffith’s position would significantly undermine legal and educational principals that have protected girls and women from discrimination. His legal viewpoint is clearly at odds with the nation’s commitment to ending discrimination based on sex. And his position causes serious concerns about whether he would support civil rights laws in defense of the rights of women and minorities.
Another right wing activist judge example:
Brett M. Kavanaugh
Again, supported by McCain
This, in spite of the fact that Kavanaugh apparently misled the Judiciary Committee during his confirmation hearings on the issue of the White House's detention policy.
And as People For the American Way pointed out
Kavanaugh has reportedly "been responsible for marshaling the fleet of largely conservative judicial nominees the president has sent to the Senate,"16 and a look at the candidates Kavanaugh has helped select and support for lifetime appointments to the federal judiciary speaks volumes about his own legal philosophy and interest in seeing the American judiciary remade in a right-wing "ideological image." According to several accounts, Kavanaugh personally "coordinated" the Administration’s nominations of Priscilla Owen to the Fifth Circuit and Miguel Estrada to the D.C. Circuit. Priscilla Owen’s nomination continues to be blocked because her record as a far right judicial activist is so extreme that even White House Counsel Alberto Gonzalez once accused her and her dissenting colleagues of committing "an unconscionable act of judicial activism." Widely termed a "stealth candidate," Estrada’s nomination was withdrawn after an extended filibuster.
And, referring to Kavanough's appointment as one of Ken Starr's assistants,
The eleven specific counts Kavanaugh outlined against the President included five allegations of perjury, five allegations of obstruction of justice, and one allegation that Clinton’s actions were "inconsistent [with his] . . . constitutional duty to faithfully execute the laws." Even conservative commentators and legal scholars were largely unimpressed by Kavanaugh’s work. The Wall Street Journal noted that a number of former prosecutors and legal scholars found the case against the President to "strain credulity" and to be based on "suppositional reasoning." The Chicago Tribune described Kavanaugh’s tortured arguments as "[u]nique and [h]ardly [a]irtight" and reported that many experts accused the report of "using explicit descriptions of sexual acts to paper over shaky allegations."For example, Kavanaugh’s assertion that Clinton could be convicted of obstruction of justice because he lied to friends who later repeated his stories to the grand jury was "a real stretch," according to Miami lawyer Neal Sonnett, who noted it was a "theory that I’ve never seen or heard of in the criminal law." Even the strongest parts of Kavanaugh’s argument were weaker than many believed would be necessary to win a conviction. Richard Phelan, the Chicago attorney who led the investigation concerning House Speaker Jim Wright in the late 1980s, noted that while the case that Clinton had lied under oath was relatively strong, perjury was rarely successful as a stand-alone charge, and was usually tacked onto a more weighty fraud or drug indictment. "If you prosecuted every guy who lied in a deposition about something," Phelan noted, "we’d have half the people in this country locked up." Many members of Congress on both sides of the aisle were equally unimpressed. Senator Specter said he believed many senators would vote that the allegations in the report were "not proved" if they were given that option. The fact that Kavanaugh’s most significant legal accomplishment to date was a listing of dubious legal charges -- bolstered by evidence many still believe was only brought to light to embarrass the President -- raises serious questions about his work as a lawyer as well as his willingness to twist legal theory to suit his political ends.
Note to Hillary supporters; McCain enthusiastically supported an agent of the vast right wing conspiracy against the Clintons and helped place him on the federal bench.
One more example of an ideal McCain judge.
Priscilla R. Owen the very model of a right wing judical activist, who, as People for the American Way indicated,
...her own fellow justices on the court, including current Attorney General Alberto Gonzales, have criticized a number of her opinions as improperly seeking to "judicially amend" Texas law or constituting "an unconscionable act of judicial activism." As the San Antonio Express-News explained when the Senate Judiciary Committee initially considered Owen’s nomination, "her record demonstrates a results-oriented streak that belies supporters’ claims that she strictly follows the law." The New York Times similarly termed Owen "the wrong judge" for the lifetime Fifth Circuit post, explaining that she "has been at times so eager to issue conservative rulings" that she has "ignored statutory language and substituted her own views.
and
with respect to Owen’s tendency to support corporations over consumers and other citizens, the non-partisan Texas Watch Foundation reviewed her opinions from 1999 through 2004. Texas Watch noted that the Texas Supreme Court has become more conservative over the last few years. Yet out of 68 cases won by consumers in the Texas Supreme Court during that period, Owen dissented in almost one-third (22). In 175 cases lost by consumers during those five years, however, Owen did not dissent in a single case. Several individual opinions by Owen continue to demonstrate her tendency to improperly re-write statutes and contracts from the bench in a way that harms consumers and individuals and benefits corporations. For example, in F.F.P. Operating Partners v. Duenez, 2004 Tex. LEXIS 778, (2004), a drunk driver collided head-on with the Duenez family car, causing permanent brain damage to Xavier Duenez and his 9 year-old daughter and other serious injury. Because it was "apparent to the seller that [the driver] was obviously intoxicated" at the time it sold him liquor and he "presented a clear danger to himself and others," the store that sold alcohol to the driver was held liable to the Duenez family under the Texas Dram Shop law, and the Texas Supreme Court affirmed. But Owen and several of her colleagues dissented and would have thrown out the jury verdict in favor of the family. The majority specifically criticized Owen’s construction of the law, explaining that it "violates the fundamental rule that we are to give effect" to every part of a statute. Id. at. Owen’s opinion, the majority explained, would have frustrated the legislature’s purpose of helping "protect innocent members of the public from the dangers intoxicated individuals pose by placing some responsibility for injury on those who sell alcoholic beverages." Id. at. Nevertheless, Owen would have rewritten Texas law from the bench to contradict the legislature and add even more to the tragic injury suffered by the Duenez family.
There are many additional examples of instances such as these of McCain the partisan Republican supporting Bush's polarizing judicial picks. The above is merely a small sample of cases.
So, when McCain speaks in code about "activist judges," in spite of his record of rubber stamping Bush's extremist nominees, it's time to turn on the bullshit detector to max., and to heed the words of one observer
Which brings us back to John McCain. When the presumptive GOP nominee panders in the way he did in his speech last week, his defenders in the news media protest that his heart isn't really in it. He doesn't mean all those things he says; he's just doing what he needs to do in order to secure the base. But if this claim is true, it makes McCain look worse, not better. It would mean that he's as cynical and dishonest as any other politician, perhaps more so.
Though he has flip-flopped on a number of issues, this is one area where I think we can take McCain at his word. As has been noted many times before, he doesn't seem to be all that interested in the kind of domestic issues the courts usually deal with so it is no wonder he sticks to conservative orthodoxy on the issue. And delivering a steady stream of reactionary judges is just about the best way to buy the loyalty of the religious right, whose continuing support he would need in order to make his administration a success.
And just how much more conservative would a President McCain be able to make the federal courts? There is no way to know how many vacancies there will be on the Supreme Court, though Justice John Paul Stevens, one of the most reliably liberal votes, is 88 years old. But it is in the lower courts where any president can have the greatest effect. There are a total of 678 judgeships on federal district courts, and another 179 on the appeals courts, the last stop before the Supreme Court. George W. Bush appointed 241 judges to the district courts and 58 to the appeals courts. Bill Clinton got the chance to appoint even more -- 305 district judges and 66 appeals judges -- 87 percent of whom are still serving.
The judges most likely to be retiring in the coming four or eight years are those appointed by Ronald Reagan and George H.W. Bush. Only a few of Jimmy Carter's judges remain, and only two appointed by Gerald Ford are still on the bench, one of whom is Justice Stevens. (In case you're curious, the longest-sitting federal judge is Manuel Lawrence Real of the Central District of California, still going strong 42 years after being appointed by Lyndon Johnson.) Furthermore, there is currently a bill in the Senate to increase the size of the judiciary by 12 appellate seats and 38 district seats. Were the bill to eventually pass, it would increase the influence of the next president even further.
All of which is to say that the stakes are incredibly high. John McCain, like other Republicans, understands the political importance of the makeup of the judiciary. Conservatives care about judges, because they know what a profound impact they can have on all of our lives. Democrats, on the other hand, have never figured out how to talk about the importance of the judiciary, either to their own supporters or to the rest of the public.