McCain’s Slippery Notions Of Judicial Activism

Our guest bloggers are Robert Gordon and James Kvaal, fellows at the Center for American Progress Action Fund.

mccainIn his speech today on the federal judiciary, Sen. John McCain promised to nominate more Supreme Court justices like John Roberts and Samuel Alito. But as George Will has pointed out, Roberts and Alito “consider his signature achievement” – campaign finance reform – “constitutionally dubious.”

In the past, McCain has suggested in private that Alito was too conservative, at least according to John Fund and Robert Novak. But today he said:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.

Last year, Roberts and Alito helped strike down a key portion of the McCain-Feingold law in a 5-4 decision, F.E.C. v. Wisconsin Right to Life, Inc. The right-to-life group ran ads calling on Wisconsin’s two senators, by name, to stop filibustering judges – ads prohibited by McCain-Feingold shortly before elections to prevent thinly veiled attack ads.

But the Supreme Court ruled that the ads were constitutionally protected as free speech. As Justice Stephen Breyer told the Wisconsin Right to Life lawyers, “If we agree with you in this case, goodbye McCain-Feingold.”

In another part of today’s speech, McCain criticized “judicial activism,” where judges “shut down debates by order of the court” rather than undertaking the “inconvenience” of the democratic process. But one of the “abuses by the courts” he cites is actually the opposite of judicial activism.

In Kelo v. City of New London, a city bought homeowners’ property through eminent domain and then resold it to a private developer. The Court’s majority declined to “second-guess” city’s determination that the plan was needed for its redevelopment and therefore was a valid public purpose. It was the conservative minority which wanted to overrule the city and impose its own policy preferences.