In McCain's Tuesday speech on the judiciary, in which he pledged to appoint judges in the conservative cast of Roberts and Alito, he used several examples of "activist" judges to illustrate the "common and systematic abuse of our federal courts by the people we entrust with judicial power".
At least one of those citations is so inaccurate and is taken so laughably out of context that it makes me wonder whether McCain's speechwriter read the decision before he included it in the talk. I can only assume not.
Here's the section of the speech:
One justice of the court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases.
Closer scrutiny reveals several major problems with the senator's logic. According to McCain spokesman Tucker Bounds, McCain was referring to an April concurring opinion penned by Justice John Paul Stevens. Stevens was appointed by Republican president Gerald Ford, yet is considered one of the more liberal justices.
The case was Baze v Rees, in which the court ruled 7-2 that lethal injection is constitutional. Hardly an "act of raw judicial power" worthy of conservative condemnation. Stevens concurred with the majority opinion, written by none other than Chief Justice John Roberts, whom McCain said meets his "standards of judicial ability, experience, philosophy, and temperament" and who would "serve as the model for my own nominees".
And although Stevens does indeed write that his "experience" leads him to conclude that the death penalty is "patently excessive and cruel and unusual punishment violative of the Eighth Amendment", he also cites to that effect Justice Byron White's opinion in Furman v. Georgia, the 1972 case that led to a hiatus in executions.
Then, Stevens acknowledges that his own experience is insufficient basis for an opinion. He writes:
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by The Chief Justice or Justice Ginsburg, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky's lethal injection protocol violates the Eighth Amendment . Accordingly, I join the Court's judgment.
It sounds to me like Stevens's jurisprudential thinking in this case is exactly the sort McCain praises. The senior justice allowed judicial precedent to override his personal beliefs on the matter.
Democratic national committee spokesman Luis Miranda says:
Once again Senator McCain either doesn't fully understand what he's talking about or he's choosing to ignore the facts and use misleading rhetoric. Americans want a President they can trust, not four more years of a president who will ignore the facts in pursuit of a partisan agenda put before the best interests of our country.
I say if McCain intends to launch a conservative attack on the judiciary, he and his staff should do some more research.
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