I know of no more profoundly anti-democratic attitude than that expressed by those who want judges to discover and enforce the ever-changing boundaries of a so-called ‘living Constitution.’ It demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And regardless of one’s success in academics and government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench.
-- Sen. McCain
"Originalism" is not "democratic" either. If anything, it is less democratic (but then we live ... as he says in the very next sentence ... a republican system, not a simple democracy) in that we are tied to the understandings of an oligarchy (until fairly recently, a minority of the public had the right to vote, in fact and/or law) from the past. Support it or not, "living Constitution" provides indirectly elected (we elect the people who nominate/confirm) judges a chance to support a more democratic understanding of terms such as "equal protection" and "due process."
So what "disrespect for the popular will" is he talking about? The people elect officials who nominate and confirm judges who support a living Constitution approach. In practice, fwiw, the people support this approach. They support a 2009 understanding of interstate commerce, not a 1789 view of what that provision of the Constitution means. They support a 2009 view of equal protection, not one where segregation or social discrimination (such as in marriage) is upheld. This is sort of why Bork lost -- the people's Senate was not controlled by originalist loving Republicans, but Democrats and Republicans like Specter who opposed it.
I assume Sen. McCain realizes a "republican form of government" includes various measures, such as judicial review, that provides a check on the "popular will." I also don't know what "common sense limitations" he is talking about. At one point, he suggests:
In a 1996 article in the Suffolk University Law Review, she stated that ‘a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.’ Mr. President, it is exactly this view that I disagree with.
But, he supports Ricci v. Stefano (no not Sotomayor's panel's respect for popular will) though I'm unsure -- the one on the ticket last year that was allegedly qualified -- if he knows what it said:
In her most recent and well-known reversal by the Supreme Court, the Court unanimously rejected Judge Sotomayor’s reasoning and held that white firefighters who had passed a race neutral exam were eligible for promotion. Ricci v. DeStefano raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures. Again, this case proves that Judge Sotomayor does not faithfully apply the law we legislators enact.
As an aside, a nod to the somewhat snarky "most recent and well known reversal," her reversal rate has been a bit less than average for appellate circuits. Anyway, Justice Ginsburg saying that if you are going to reverse the panel via a new rule, it would make sense to remand is not really the same thing as the dissent "rejecting" the panel's (a majority of the circuit; but she joined it, so I guess it is "hers" too) reasoning. So, the "unanimously rejected" is dubious, if standard cant.
The new rule, a "novel" approach that "pushed the law in a new direction," was the path chosen by the majority. It 'raised the bar considerably.' But ... I'm confused ... isn't that a bad thing? And, it is quite debatable -- as with other decisions -- that the result "faithfully applied the law" as well. But, when they do this for certain conservative ends, McCain apparently doesn't mind.
If nothing else, this confirmation battle underlines the predominate official mentality (with certain notable exceptions) of the Republican Party. Again, let's remember what Sen. Whitehouse (he was not alone in this) said about who McCain did support:
For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.
Overruling local laws, novel approaches to the law, disrespect of the popular will, questionable interpretation of federal legislation, and so on. I'm shocked! McCain was bamboozled! Maybe his advisers there were the same ones who suggested Palin was a credible v.p. choice. Or maybe McCain does not really deserve our respect as a serious person, some maverick that follows steady principles, not whatever fits the conservative line at the moment.
Meanwhile, at the new Souter homestead:
A silver pineapple hangs on the front door, and chipmunks frolicked in the driveway on Monday afternoon.
Anyway, when people like Dahlia Lithwick over at Slate wonder what value the confirmation brought since it was all theater (and apparently, the Dems just honored the "Roberts standard"), maybe they can highlight this. Note the contrast between the Republicans and the reality based Democrats, even if the latter are flawed all the same. But, as with the Gates coverage, you have to do some reading between the lines and find some pearls among the swine. And, hope the standard framing doesn't pervert things too much.