Brownback Previews Tomorrow’s McCain Speech on the Judiciary for NRO

Monday, May 05, 2008

SAM BROWNBACK, JOHN MCCAIN

Senator Sam Brownback, driving by Hillsboro, Kansas, took a few moments to talk to the Campaign Spot about John McCain’s speech on the judiciary tomorrow.

Brownback said tomorrow’s address at Wake Forest University will be his major judicial roll-out speech. “He’s going to hit keenly his views of the role of the judiciary, give an indication of type of justices to the Supreme Court he would appoint if he has that opportunity, as well as what he’ll be looking for in terms of circuit and other federal judges. He’ll say what he views as the president’s role and the Senate’s role, and you’re going to see him talk about appointing strict constructionist justices like [John] Roberts and [Samuel] Alito – qualified, gifted, learned, and that hold to a view of the Constitution that it is a document to be applied, not rewritten.”

Brownback said we may see McCain note “judicial activism is inappropriate whether it’s from the left or the right… The major social policy issues are where these things come up, and that they’re more appropriately dealt with in legislative bodies, not by the courts. That will enhance the standing of the court and rebalance the relationship between the legislative and the judicial branch… John Roberts had a beautiful analogy, that it’s a bad thing when the umpire is the most watched player on the field. The umpire should just call ball or strike, and I think that analogy captured the moment.”

I noted an argument from back in the GOP primary, wondering whether a Supreme Court justice who would find the speech limitations of McCain-Feingold campaign finance reform constitutional would also overturn Roe v.Wade.

“I think he’s not going to select justices based on how they would view a single piece of legislation like McCain-Feingold,” Brownback said. “The potential justice’s views on the First Amendment probably be significant, but the more relevant question will be will it be in holding to strict reading of Constitution. I don’t think the type of question that you’re asking will be asked of a potential judicial nomination… You didn’t have a Roberts or an Alito answering the question of what their stance was on Roe v. Wade other than to say it is precedent. They would talk about the Constitution instead of narrow opinion on one case.”

Asked whether McCain would address his role in the “Gang of 14” compromise that got certain nominated judges passed and others not, Brownback said he expected McCain would “reference it… His role in that does come up with conservative groups. I think the ‘Gang of 14’ was largely successful, as we got a number of those judges on through. I was not one of the ‘Gang of 14.’ I was prepared to declare that that Democrats had abused the system and were now subjecting judicial nominees to a supermajority, and you can’t argue that Constitution requires a supermajority. At the end of the day, they brokered an agreement that got through most of the judges, not everybody, but probably saved a complete meltdown of the body for the remainder of that year.”

I asked Brownback if McCain would talk about how he could ensure that his appointed justices would remain strict constructionists, as past Republican presidents have appointed justices who they thought would have a particular mindset, and who turned out quite different (COUGHsouterCOUGH).

Brownback said he hadn’t seen the entire text of the speech, so he didn’t know whether that issue would be addressed, but noted, “McCain views appointments of judges, particularly Supreme Court justices, as one of the most significant things a president does and you need to spend a lot of time seeing if you are sure you’re getting what you think you are getting. You’ve got to spend a lot of time looking at a nominee’s records and as an individual.”

UPDATE: Fred Thompson is also previewing the speech, and he talked to Glenn Reynolds.

ANOTHER UPDATE: Campaign Spot reader Derek offers two quotes from McCain on Bork and Souter that his campaign probably will want to spotlight:

New York Times, October 6, 1987, quoting John McCain on Bork.

"One should remember that, if our courts are free to go beyond the terms of our cherished Constitution to create new constitutional mandates that some might find acceptable, the Supreme Court in later years could use that free-roaming power to create mandates we don't like. Neither course is sound. The only sound course for the courts is to apply the law as it's written, not create it as they might wish it to be.

"Again the issue is not whether Bork is anti-abortion or anti-privacy. The question is this: Is Robert Bork unfit for the Supreme Court because he believes this decision [Roe v. Wade] is logically and constitutionally flawed? I think not.

"Of course we must protect minorities and even majorities from societal discrimination. But this doesn't mean that, because he's criticized the methodology the Court's used, he's any less committed to full and fair enforcement of the equal protection clause. All it means is that he's a smart and outspoken enough legal scholar to point out some of the very real problems with the Court's legal reasoning."

Los Angeles Times, July 25, 1990, quoting John McCain on Souter.

Republican Sens. Phil Gramm of Texas and Don Nickles of Oklahoma each gave tentative endorsements to Souter. But Republican Sen. John McCain of Arizona expressed frustration that the President had nominated a low-profile judge, apparently to avoid the kind of blood bath triggered by the nomination of Bork.

"Any first-year law student would tell you his chance of an eventual appointment to the Supreme Court is directly related to the paucity of writing or speaking on controversial issues," McCain said acidly. "It gives us a largely unknown quantity in appointments to the bench."

05/05 03:07 PM Share