McCain's Judicial Hypocrisy

[babylonsister]

http://www.prospect.org/cs/articles?article=mccains_judicial_hypocrisy_

McCain's Judicial Hypocrisy

This week John McCain wholeheartedly embraced the idea of "judicial activism" -- a throughly mendacious concept that actually just means opposing judicial decisions that conservatives disagree with.


Paul Waldman | May 13, 2008 | web only



Both conservatives and progressives have the words and phrases they like to invoke, the commonly offered arguments, the villains and heroes who populate their rhetoric. But you could sift through every word of contemporary American political debate -- read every stump speech, pore over every press release, endure every moment of every cable chatfest -- and you would be unlikely to encounter a more complete, unadulterated, shameless piece of outright bullshit than "judicial activism." It is the ne plus ultra of disingenuousness, the zenith of cant, political deceit in its purest form. And seeing John McCain embrace it should disabuse anyone of the notion that he is somehow more honest than the typical politician.

And embrace it he did, in a speech last week that got lost behind the noise of the Democratic nomination fight. Warning of the danger from "activist judges," McCain railed against the threat from "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Thus did McCain check one more box on his to-do list of pandering to the right-wing base.

The truth is that an "activist judge" is a judge who makes a decision conservatives don't like. If they truly cared about the principle that judges shouldn't substitute their own opinions for the law, then they would be just as exorcised about "activist" decisions that served conservative goals as they are about those that serve progressive goals. But if anyone can name me a single judicial decision that served the right's ends and that conservatives protested on the grounds that it was too "activist," I'll eat my hat. And even a court's refusal to exercise power and overrule laws or precedents -- as courts at every level did in the Terri Schaivo case -- will be called "activist" if conservatives don't like the outcome.

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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.

I haven't heard Barack Obama talk much about judges, but if and when this comes up in one of the presidential debates, and McCain blows the same old smoke about activist judges, I'd like to see Obama turn to him and say, "You know what, senator? Let's try telling the truth. You and I both know that this 'activist judges' line is a load of bull. You want to appoint judges who are conservative -- you want them to overturn Roe v. Wade, and to rule against protections for workers, and to support expansions of executive power. I disagree on all those things. But at least have the courage to be honest with us about it. Don't hide behind this phony 'activist judges' line and try to convince us it's all about some abstract principle. You want to talk about judges? Let's talk about it."

Then maybe we could have a real discussion about what the judiciary does and how it affects our society. We could talk about what it would be like if abortion were illegal. We could talk about the way John Roberts and Samuel Alito have upheld George W. Bush's unconscionable attempts to expand presidential authority (the real reason they were chosen, by the way). We could talk about what it means to have a Court that renders decisions as abominable as that in the Ledbetter case. It would certainly be long overdue.