John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "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."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.