Teepen: McCain's pander to GOP right about federal judges is over the top

It figured that John McCain, as the GOP's presidential nominee-to-be, would have to pander mightily to his party's ever-demanding right in hopes of making up at least a little for past apostasies. But, whoa, this mightily?

McCain's recent rip on the federal courts and judges was a pander beyond conscience.

Of course, McCain's sin in such matters is great. He was one of the co-called Gang of 14 – a leader, no less, of the neatly bipartisan group that broke a long Senate stalemate which had hung up President George W. Bush's judicial appointees. They agreed to avoid partisan filibusters, clearing a path for Supreme Court nominee Samuel Alito and other stymied Bush conservatives.

You'd think the GOP right would be delighted, but the maneuver mooted the "nuclear option," a brewing parliamentary maneuver that was to end filibusters, period, and thus let simple Republican majorities approve even the looniest right-wingers for the bench.

McCain's role was responsible and statesmanly and should not require that he pay heavy dues for his own party's sullen indulgence. But the candidate ponied up even so, now dutifully mouthing the hoary cant about crazed judges running amok. For which, read, considering the sources, leftist judges.

The federal judiciary is hardly leftist. Its judges have been appointed for 20 of the last 28 years by Republican presidents. The Supreme Court was conservative even before Bush deepened its rightward tilt.

Yet McCain charged that federal judges "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."

That's plainly not so, but when the courts do judge it necessary to make an unpopular ruling blame not "liberal" or "activist" judges but James Madison and the other framers of the Constitution, and bless them for it.

The framers insulated the judiciary, as one of the three branches of government in a balance of powers, from the partisan and pop passions of the moment. And thus protected the Constitution from being dragged this way and that by every instant congressional or electoral show of hands. With the amendment process instead, the framers substituted reflection for reaction.

For indifference to the Constitution these days, look not to the federal bench but to the White House.

The president argues that, as commander-in-chief, he can sanction, as he has, warrantless surveillance and indefinite detentions; that he can, as he has, break international treaties single-handedly; and can use presidential signing statements, as he has, in unprecedented number and with unprecedented political purpose to ignore laws that inconvenience or displease him.

Bush has asserted, in short, an extra-constitutional presidency privileged to rule by fiat.

Today's font of judicial activism is the Federalist Society, a ganglion of networking conservative-to-reactionary lawyers and law professors, and a prime source of the Bush appointees to the federal bench, who have often shown little of the traditional deference to precedent.

If McCain is really fretful about activist judges, he should be confronting his party's right, not parroting it.

Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta.