John McCain: we leave too much to the discretion of our judges

John McCain spoke to the Federalist Society on limited government last November. This is the speech where he puzzlingly declared that a majority of Americans consider themselves "right of center". Most of the speech focused on his views on activist judges, praising the confirmation of Bush's picks, and decrying Congress for writing laws that give judges "too much discretion".

Some basic attributes of judges follow from this understanding. They should be people who respect the limited scope afforded Federal judges under the Constitution. They should be people who understand that the Founders' concern about the expansive tendency of power extended to judicial power as well as to executive or legislative power. They should be people who are humbled by their role in our system, not emboldened by it. Our freedom is curtailed no less by an act of arbitrary judicial power as it is by an act of an arbitrary executive, or legislative, or state power. For that reason, a judge's decisions must rest on more than his subjective conviction that he is right, or his eagerness to address a perceived social ill.

The efforts we undertook a year and a half ago, working with Senators of both parties, who were concerned about abuses of the filibuster tradition, resulted in a substantial increase in the confirmation of the President's Circuit Court nominees. Priscilla Owen, Janice Rogers Brown, and Bill Pryor have all been confirmed, and this year Brett Kavanaugh was confirmed to the US Court of Appeals for the DC Circuit. The President nominated these individuals; I supported each of their nominations; and we fought successfully to confirm them. President Bush now has a higher percentage of his nominations confirmed to both the District Courts and the Circuit Courts than did President Clinton during his presidency. I am also proud to see Chief Justice Roberts and Associate Justice Alito serving with such distinction on the Supreme Court.

They are good people, deserving people, and their decisions will be grounded in the text and history of the statute, regulation, or constitutional provision under consideration, and interpreted narrowly in light of the specific facts of the case before them.

Of course, to paraphrase Mr. Madison, if angels wrote laws, we wouldn't need judges at all. Unfortunately, angels don't write laws; Congress does. And we're called a lot of things, but no one would mistake us for angels. Too frequently, we write laws that are unclear, we vote on laws we haven't adequately debated, and sometimes, I am sad to report, we vote on laws we haven't even read. When we pass laws like that, we leave too much to the discretion of our Federal judges. We fail in our role to ensure that the judiciary's scope is limited. As we debate reforms to the practices and procedures of Congress, I hope, particularly we Republicans, will take an honest look at how we fail to fulfill our constitutional responsibilities when we write laws that invite judicial activism and misinterpretation.


Why these restraints on Federal judges? Because the structure of our government, by itself, will not assure our freedom. That structure, while it reduces the likelihood of tyranny, is only as strong as our commitment to the rule of law, and the rule of law depends largely on our judiciary's commitment not to impose its will arbitrarily on us.

That's why the appointment of Federal judges has become such a flashpoint issue for so many. Judges stand in our system where our commitment to limited government meets our commitment to the rule of law. To the extent that judges impose their own will, they undermine both the structure of limited government and the rule of law.