Recalling John McCain's 2008 Speech on Judicial Activism


Today's Senate Judiciary Committee confirmation hearing for nominees John Bush and Kevin Newsom produced much debate around the topic of judicial activism. It is therefore fitting for us to look back on a May 2008 speech by Senator John McCain in which the Senator made an eloquent appeal for judicial restraint. In his speech, Senator McCain explained the inherently anti-democratic nature of judicial activism and its appeal to the liberal intellectual elite:

“Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige.”

“[B]y 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.

McCain called out Senate Democrats on the real motive behind their personal attacks on a Republican administration's judicial nominees.

“[W]hen President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president's call to make.”