Politics & Government

McCain vows to name more 'Alitos' and 'Robertses'

Sen. John McCain speaks to healthcare workers on Thursday.
Sen. John McCain speaks to healthcare workers on Thursday. Peter Tobia / Philadelphia Inquirer / MCT

WASHINGTON — John McCain sought to burnish his conservative credentials Tuesday with a broadside against "the common and systematic abuse of our federal courts by the people we entrust with judicial power" and a promise of "better judges" in the mold of Supreme Court Justices John G. Roberts and Samuel Alito.

In a speech on his judicial philosophy delivered in a chapel at Wake Forest University in North Carolina, McCain, the presumptive Republican presidential nominee, decried federal judges who "assured of lifetime tenures...show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people."

The intended audience seemed delighted.

"From a conservative perspective, he says all the right things," wrote University of Utah law professor Paul Cassell on the popular conservative legal blog The Volokh Conspiracy.

Liberal groups blasted McCain, saying his bouquet for the right undercuts his self-styled maverick appeal to independent voters and even some Democrats.

"Here's what McCain was really telling the party base: If you liked George W. Bush's nominees, you're going to love the judges John McCain will put on the bench," said Kathryn Kolbert, president of People for the American Way, noting that the decisions of the Roberts court have limited workers' rights, environmental protections and access to abortions.

McCain singled out colorful cases to make his points, such as the 2005 Supreme Court decision in Kelo v. City of New London, Conn., which expanded the ability of local governments to take private property by eminent domain: "In the hands of a narrow majority of the court, even the basic right of property doesn't mean what we all thought it meant since the founding of America."

And he mocked the 9th Circuit Court of Appeals for its 2002 decision in a lawsuit brought by a man who wanted to remove "under God" from the Pledge of Allegiance: "The 9th Circuit agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion ...generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco." The Supreme Court reversed the ruling in 2004.

But McCain was silent on the white-hot issue of Roe v. Wade, the 1973 decision that legalized abortion nationwide and one that many conservatives see as the ultimate example of wrong-headed "judicial activism." With several aging Supreme Court justices, the next president could be in a position to preserve Roe v. Wade or dismantle it. McCain has said that the decision should be overturned, so abortion-rights supporters mocked him for his lack of "straight talk" — McCain's signature phrase — in Tuesday's speech.

``He's learning the secret code," said Elizabeth Shipp, the political director for NARAL Pro-Choice America. "The secret code is what he has to say in public when people are actually paying attention to him to appeal to independent and pro-choice Republican voters. He can't come out in a major speech and say, `Yeah, I want to see Roe v. Wade overturned.'"

In outlining his philosophy, McCain hoped to make clear his common cause with the conservative activist base of his party. For them, the judiciary is a huge issue, but many regard McCain with suspicion. One reason was his decision to join the "Gang of 14," a bipartisan group of Senate moderates that sought to avoid filibusters in attempting to win confirmation of several of Bush's judicial appointees.

McCain defended the group's effort in his speech, noting that most of Bush's appointees were confirmed, including Roberts and Alito. He blamed Democrats for blocking many Bush nominees, ignoring that the Republican-controlled Senate blocked dozens of Bill Clinton's judicial nominees during the 1990s.

He said his appointments would be "in the cast" of Roberts, Alito and the late Chief Justice William H. Rehnquist, "jurists of the highest caliber who know their own minds, and know the law, and know the difference."

"I take him at his word," wrote Cassell, a former Bush-appointed federal judge, on his blog. "I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture."

McCain's campaign also announced its "Justice Advisory Committee," whose co-chairs are conservative favorites Ted Olson, a former U.S. solicitor general, and Sen. Sam Brownback, R-Kan. Among its members is Miguel Estrada, whom Bush nominated to a seat on a federal appeals court but who withdrew his name after his confirmation became a partisan battleground.

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