What McCain's Speech Isn't About

Journalists who pressed for details about "the abortion speech" or the "gay marriage speech" were told, repeatedly, that the speech was not about those issues at all, really, and would focus exclusively on McCain's longstanding convictions about judicial nominations and the appropriate power of judges. Ok, ok, that's fine, whatever they wanted to call it.

Well, the McCain campaign was right. There is no mention of abortion, or of same-sex marriage, or of most any particular question that the court has had to decide (two exceptions: the Kelo decision and Newdow.) Instead, McCain casts himself as a defender of judicial nominee and the Democratic presidential candidates as advocates of "judicial activism." The only backdating McCain engages is in when he defends his votes in favor of justices Breyer and Ginsberg (they were qualified; no need to throw food at Democrats just for the sake of throwing food) and then the Gang of 14 (which resulted in the confirmation of Roberts and Alito).

Some Excerpts:

Senators Obama and Clinton have very different ideas from my own. They are both lawyers themselves, and don't seem to mind at all when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives. Nor have they raised objections to the unfair treatment of judicial nominees.

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.