To the consternation of many conservatives, John McCain has seemed reluctant to go after his potential Democratic adversaries with great force. That will change a bit today in a speech on judges at Wake Forrest University. Yes, his remarks contain the expected, impassioned plea for judicial restraint and words of praise for Justices Alito, Roberts, and Rehnquist. And he also puts in a brief defense of his role in the Gang of 14, which, he contends, helped get through two Supreme Court and several appeal court judges but has nonetheless been a sore spot with some conservatives.
But it is his sharp words about his Democratic opponents (on a day when they wait for election returns without making much news until tonight) that may catch the most attention. McCain explains:
Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.
It is a measure of how tame the debate has been that these are some of the most ideologically pointed lines to be spoken by McCain so far. Clearly, he and his campaign must believe this issue is a winner against both Democratic opponents, a chance to paint them as outside the mainstream. McCain–who is understandably hesitant to take any step that might turn off independents–may have found one of the rare issues he thinks can both please conservatives and keep independents on his side. Unfortunately for him, it’s a rare voter who casts his or her ballot for President solely on the basis of judicial philosophy and potential Supreme Court picks.