McConnell on Sotomayor

Here's Senate Republican Leader Mitch McConnell's reaction to the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court:

“Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.

“Our Democratic colleagues have often remarked that the Senate is not a ‘rubber stamp.’ Accordingly, we trust they will ensure there is adequate time to prepare for this nomination, and a full and fair opportunity to question the nominee and debate her qualifications.”

The Silver Lining on Sonia

David Frum (via Hot Air) has an interesting take on Judge Sonia Sotomayor's nomination to replace Justice David Souter. According to Frum, Sotomayor may be so personally obnoxious that she will push Justice Anthony Kennedy into voting with the conservatives.

If so, the balance of power on the Court actually tips right, given that Souter voted reliably with the liberals; replacing Souter with a Democratic nominee changes nothing unless there are unintended consequences.

McCain Gets It

John McCain reassured conservatives (and anyone else who doesn't want to be killed by a terrorist) that he rejects the U.S. Supreme Court's decision that enemy combatants can assert the constitutional rights of U.S. citizens. McCain called the 5-4 decision "one of the worst" decisions in our country's history.

McCain noted that the Court's opinion reminds us of the importance of a president selecting judges who interpret the law rather than legislate from the bench. Justice Anthony Kennedy went beyond usurping Congress's right to make legislation; Kennedy amended the Constitution itself by judicial fiat.

I've been reading David McCullough's John Adams recently and was struck by how little respect Kennedy showed for the Framer's conception of government. Adams and most other Framers understood our government to derive its authority from the consent of the governed. How on earth an enemy combatant, captured in another country and imprisoned beyond our borders, can be understood to have consented to our form of government -- so to take advantage of the rights it affords -- makes no sense.

Kennedy, moreover, has played a bait and switch with Congress, by encouraging Congress to pass the very laws that he then turned around and struck down.

Justice Antonin Scalia, in dissent, is doubtless right. The Court's decision makes us more vulnerable to terrorist attack. People will die as a result, and not just Americans.

Perhaps the most macabre aspect of the majority opinion is the perverse incentives it gives our military when fighting jihaadists, to either kill or release enemy combatants. Our military can hardly risk taking an enemy combatant prisoner, because to do so would give the terrorist a tactical advantage in destroying America by demanding his newly-found right to view our national security data. So Kennedy unwittingly has encouraged our military to take no prisoners.

The Supreme Court opinion serves to remind conservative voters that regardless of their lack of enthusiasm for McCain, any justice whom he would nominate would be better than a Barrack Obama nominee. Obama, after all, might try to put Hillary Clinton on the Court just to keep her from running against him in 2012.

McCain and Judges

Federalist Society founder Steven Calabresi co-authored a column for the Wall Street Journal in which he opines that John McCain would do a better job picking strict constructionist judges than Mitt Romney. This is an important endorsement from someone with a long record of promoting the rule of law and opposing judicial activism; it should reasssure the conservative base if McCain gets the nomination.

Like many conservatives, I was troubled about McCain's role in the "Gang of 14." That did not seem to bode well for the type of judges he might appoint. So I was particularly interested in Calabresi's take on that issue:

Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

Conservative complaints about Mr. McCain's role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.

The Federalist Society web site asked the candidates to state their philosophy on judicial selection. McCain's response likewise reassured me that he will appoint strict constructionist judges:

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

McCain's voting record reveals that he is not a recent convert to the ideals of the Federalist Society; he voted to confirm Judge Robert Bork. In arguing that he would only appoint judges who respected federalism and seperation of powers, McCain noted:

This is not a new position. I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.

When the next president is sworn in, six members of the Supreme Court will be older than 70 years of age. As Sloane writes (below), conservatives need to suck it up and vote Republican -- regardless of the name of the nominee.

McCain makes a convincing case that he would be a superb Commander-in-Chief, and that he will appoint judges who understand that their job is to interpret the law, not invent it. To be sure, these are not the only tasks of a president, but they are two of the most important.

ACLU Flush With New Privacy Rights

In case we needed a reminder that one of the single most important tasks of the president is to nominate competent judges, we get this story out of Minnesota via Drudge.

The ACLU has taken the position that Senator Larry Craig had a privacy right to engage in gay sex in the Minneapolis airport. In a brief to the Minnesota Court of Appeals, the ACLU argued that Craig should be permitted to withdraw his guilty plea, relying on a 38 year old Minnesota case that held that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."

What troubles me most about that decision is not the gay sex aspect. I don't really care about who Craig sleeps with, and would prefer to be spared the sordid details.

I do care about judges making up rights out of whole cloth. Last time I checked, the constitution contains no provisions relating to public restrooms (or, in the language of the Framers, to "necessaries").

The ACLU's reasoning assumes that Craig had a right to have sex in a place paid for, built, cleaned, and heated by the public -- in essence, that the public was somehow required to provide for a venue for Craig to have sex. That crosses the line from personal autonomy to a public subsidy.

So the question for voters becomes: which presidential candidate is most likely (or least likely) to appoint judges who will accept the ACLU's reasoning? For all his faults, President Bush has appointed the most brilliant strict constructionist judges of anyone in recent memory, including Ronald Reagan.

We need another president who will appoint more Alitos and Roberts. And we need enough Republican Senators to confirm those nominees.