McCAIN'S JUDICIAL PLANS IN LOCKSTEP WITH BUSH

by Bill Berkowitz

(IPS) -- While it isn't as eye-catching as the latest reports from Iraq and Afghanistan, or as headline-grabbing as rapidly escalating gas prices and the growing number of housing foreclosures, and few voters cast their ballot based on it, the judicial appointments of whomever wins the presidency in November will have long-lasting ramifications for the country.

On May 6, while Senators Barack Obama and Hillary Clinton were still battling it out in Democratic presidential primaries in Indiana and North Carolina McCain, stopped off at Wake Forest University in Winston-Salem, North Carolina to deliver a speech about his judicial philosophy.

While McCain spoke about a number of issues related to the Constitution, including the separation of powers that it enshrines, the subtext of his remarks was red meat to conservatives. The candidate assured them that he was resolutely opposed to so-called "judicial activism," and that a McCain administration would nominate Supreme Court justices in the mould of Chief Justice John G. Roberts Jr. and Samuel A. Alito, Jr., both of whom were appointed by Bush.

Interestingly, McCain failed to mention the other two stalwart conservatives on the court, Antonin Scalia and Clarence Thomas, who were named by Bush as judicial models during the 2000 presidential campaign but are often seen as toxic by independent voters. While the mainstream media dutifully reported on McCain's speech, they were more occupied by the political buzz fashioned by the Obama/Clinton contests. McCain's remarks were reviewed carefully, and mostly favourably, by conservative leaders.

Although still skeptical about McCain's conservative credentials, and downright angry over McCain's role in failing to insist on using the nuclear option (voting to end filibustering by Democrats in the Senate over Bush's judicial nominees), it is absolutely necessary that he convince them that he will continue their quest to control the U.S. judicial system.

In his talk, McCain "warned against complacency, because 'there is one great exception in our day' to the smooth functioning of the separation of powers," The New Yorker's Jeffrey Toobin reported.

That "great exception," according to McCain, "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."

McCain was not plowing new ground. From President Franklin Delano Roosevelt's packing of the Supreme Court with justices that would support the policies of the New Deal in the 1930s, to a 1950s court headed by Chief Justice Earl Warren -- which ruled that the civil rights of all of U.S. citizens must be respected -- to judges appointed by President Bill Clinton, conservatives have been railing against the a judicial activism that countered their agenda while nevertheless supporting judicial activism when it propped up their agenda.

During the Clinton administration, conservatives inveighed against what they were then calling "the imperial judiciary." In his 1996 book, "Slouching Toward Gomorrah: Modern Liberalism and American Decline," Robert H. Bork, a former U.S. Court of Appeals judge who was roundly rejected for the U.S. Supreme Court nearly nine years earlier, went so far as to suggest that the way to thwart "judicial tyranny" would be to "pass a Constitutional Amendment making any federal or state court decision subject to democratic reversal in Congress."

At about the same time, Richard John Neuhaus, a longtime Religious Right leader, convened a First Things-sponsored symposium titled "The End of Democracy: The Judicial Usurpation of Politics." David Brooks, who is now a contributor to the op-ed pages of the New York Times and a regular commentator on PBS' News Hour, wrote in The Weekly Standard that the symposium was organized to "suggest that an unrestrained judiciary is seizing control of crucial sections of American life and taking decision-making power away from the democratic process and the American people."

Ironically, as a People for the American Way report pointed out, 59 percent of federal appeals court judges were appointed by Republican Presidents Ronald Reagan, George H.W. Bush and the current Bush. In addition, seven of the nine justices currently on the Supreme Court were appointed by these three Republicans.

As Toobin reported, in North Carolina, McCain was clearly following the lead of President Bush who has "often expressed contempt for judges who 'legislate from the bench.'"

According to Toobin, "The senator has long touted his opposition to Roe [v. Wade], and has voted for every one of Bush's judicial appointments." In addition, "the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement."

Although McCain's speech specifically referred to a case where Supreme Court Justice Anthony Kennedy overturned the death sentence of a 17-year-old boy who had been convicted of murdering a woman in her home after breaking into it, he could well have been talking about any number of issues that have rubbed conservatives the wrong way, including the recent California Supreme Court ruling in favour of same-sex marriage.

"The Straight Talk Express took another sharp right turn today as John McCain promized his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people," said Obama spokesman Tommy Vietor.

"Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said.

As decisions of the Roberts court have revealed, "judicial activism" is one of those eye-of-the-beholder things. According to Toobin, the current court, "in just three years," has "crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state."

Around the same time McCain delivered his remarks in North Carolina, his campaign announced the names of those who would help him select nominees for judicial positions. Heading up the effort are two longtime hard line conservatives, Theodore B. Olson, former solicitor general of the United States, and Kansas Senator Sam Brownback.

With the advanced age of two of the four liberal-leaning justices on the court -- John Paul Stevens is 88 and Ruth Bader Ginsburg is 75 -- a factor, and the possibility that David Souter has had enough, the next president could name as many as three new Supreme Court Justices during his first term alone.

Who McCain would appoint to the U.S. Supreme Court and other courts is something that independents will have to weigh carefully when they enter the polling booths. If his North Carolina speech is a signpost, it appeared to indicate that the Arizona senator's "maverick" status will not be in play when it comes to the courts.

Although McCain has been trying to separate himself from President Bush's policies and philosophy, in Winston-Salem he made it pretty clear that when it comes to his judicial nominees, he's comfortable using Bush's playbook. *Bill Berkowitz is a longtime observer of the conservative movement. His column "Conservative Watch" documents the strategies, players, institutions, victories and defeats of the U.S. Right.