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July 2, 2008

A Reagan era irony in Senator McCain's recent judge-bashing

Reflecting more on Senator John McCain's notable crime speech yesterday (first blogged here), I realized there was an interesting irony as a result of his praise for Ronald Reagan and his critique of the federal judiciary.  Let me explain.

McCain asserted that, because "President Reagan offered a different approach to criminal justice, ... over time America became a better, safer, and more just country."  Later, Senator McCain said that "nowhere is the influence of a president more critical to law enforcement than in the power of judicial nominations."  Then he lamented how "one badly reasoned opinion, by one overreaching judge, can undo [a conviction]....  Even worse, when such opinions issue from the highest court, they set a precedent for many more injustices, and they add one more obstacle to the work of law enforcement."

Though one can debate these assertions, what seems ironic and noteworthy is that the vast majority of the most significant and controversial pro-criminal-defendant rulings have comes from the pen of the two Justices now on the Court who were appointed by President Ronald Reagan: Justice Antonin Scalia and Anthony Kennedy.  Specifically, just this past Term, Justice Kennedy authored big wins for defendants in Kennedy and Boumediene, and Justice Scalia wrote broadly for defendants in Giles and Santos (and Heller).

Of course, two of the very biggest criminal defense SCOTUS wins in recent years — Blakely and Crawford — were both authored by Justice Scalia.  And a large number of recent rulings striking down death sentences (from Roper to Panetti to a bunch of Texas cases) were authored by Justice Kennedy.

Given that seven of the nine current Justices were appointed by Republican presidents and that 60% of lower federal court judges are also Republican appointments, it is especially sad and telling that Senator McCain still cannot resist bashing supposedly "soft-on-crime" federal judges.  Anyone working in the federal system knows that most federal judges are anything but "soft," and yet still their daily thankless work in defense of constitutional principles for criminal defendants gets attacked by the Republican presidential candidate.

July 2, 2008 at 05:58 PM | Permalink


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When speaking to the "little people" there is no need to ensure that your comments are correct or coherent. They have not earned such respect.

Posted by: S.cotus | Jul 2, 2008 6:37:51 PM

Panetti's death sentence was not struck down. He is still on death row and has been found competent to be executed.

Opposition to judicial activism does not mean the courts should rule for the prosecution every time. Justice Scalia's pro-defendant rulings have been on rights that really are in the Constitution -- confrontation and jury trial. His most vigorous dissents against pro-defendant rulings have been in cases where the right was invented purely by the Supreme Court with no basis in the text or history of the Constitution, e.g., the Lockett line.

When judges genuinely are soft on crime (e.g., Judge Reinhardt in the Ninth), "bashing" in the sense of verbal criticism of their rulings is entirely in order.

Posted by: Kent Scheidegger | Jul 2, 2008 6:55:56 PM


It's news to me that Heller was a ruling "broadly for defendants." Mr. Heller was not a defendant. He wanted to possess a gun, the DC government wouldn't allow it, so he sued. I think that makes him a plaintiff in a civil suit.

It may be the case that future defendants in felon-in-possession cases will benefit from Heller -- and it may not. My guess is they won't. But one way or the other, to say now that Heller is a win for defendants is at best premature.

Posted by: Bill Otis | Jul 2, 2008 7:12:04 PM

What happens in the case? Husband is a felon, white colar. Married. His wife has no record. Hunting rifles are in the house when probation comes over. The guns are registered to his wife.

Is that felon in possession?

Posted by: | Jul 2, 2008 9:07:25 PM

Last time I checked, Kent, the Eighth Amendment is also in the Constitution. And, many people assert that the Blakely rule is more "inventive" than the rule applied in Roper or lots of other death penalty cases. It is all in the eye of the beholder.

And, Bill, by any standard, Heller is a pro-individual strike against state efforts to control crime through certain criminal regulations. You are 100% right that only time and future rulings will tell if many (or any) criminal defendants get benefits from Heller, the decision in my view already clearly presents, in the words of Senator McCain, "one more obstacle to the work of law enforcement."

Posted by: Doug B. | Jul 2, 2008 9:20:11 PM


McCain is an admirable and courageous man. How many people could have endured what he did? But a legal expert he is not.

Like most conservatives, I'm glad Heller came out the way it did. It is analytically and textually correct in my view, and it strikes a blow for individual freedom. I only wish my liberal friends had been as enthusiastic about gun ownership in the past as they seem to be now.

On the other hand, like most everybody, I don't believe the Second Amendment is or ought to be unlimited. It will be for legislative bodies in the first instance to determine what limits are both prudent and constitutional. After that, the courts will take it up and then, as you say, only time will tell.

None of my friends in law enforcement has expressed to me any fear about the outcroppings of Heller. Perhaps this was to be expected, since Virginia was a pro-gun state to begin with, to the point that it was occasionally criticized by our pals across the Potomac for excessively lax gun regulation. Throughout most of the Commonwealth, Heller was the de facto state of affairs well before last week.

Posted by: Bill Otis | Jul 2, 2008 10:26:48 PM

You can fool all the people for some time and some people for all the time but you can't fool all the people all the time.
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Posted by: Nishantha | Jul 3, 2008 10:43:32 AM

Another pure example of the blind trying to lead the blind. McCain is so caught up in observing his conservative principles that he will, at times, say things that make absolutely no sense. It is amazing that this is 2008 and candidates from the republican party are still clinging to the concept of law ushering from the Regan Era. All this despite the fact that time has shown the majority of these laws passed were complete failures - i.e., mandatory minimums, etc.

Posted by: James | Jul 3, 2008 1:22:34 PM

McCain knows that his intended audience by those remarks will consider any opinion they do not like to be "liberal" and probably "liberal activism" no matter what the facts are. What is the number one example of "liberal activist" opinions that is always cited by anyone who complains about liberal activists? Roe v. Wade, of course. What party appointed the majority of the justices in the majority opinion of Roe v. Wade and the author of said opinion? The Republican Party.

Thus facts are pretty much entirely irrelevant for a politician - because they know their intended audience, the right wing base, will make the "proper" connection regardless of the "real facts." What this shows is that McCain, for all of his false piety over campaign finance is just another slimy politician who will say anything to get elected. Too bad that Obama is too busy pandering over Kennedy and Heller to call him out on it (but what can you expect from a politician who despite understanding the deterrence theory of tort law still supports insurance company backed "tort reform"?)

Posted by: Zack | Jul 3, 2008 3:03:23 PM

Should say right or left wing base because the Democrats are no better in that regard than the Republicans are

Posted by: Zack | Jul 3, 2008 3:06:41 PM

I think it is really cute when lawyer troll the little people with terms like “soft on crime.” (e.g. "Judge Reinhardt is soft on crime).

But it is pathetic when a lawyer makes a career out of it.

Posted by: S.cotus | Jul 3, 2008 9:53:11 PM

"Last time I checked, Kent, the Eighth Amendment is also in the Constitution."

Last time I checked, Lockett was not based on the Eighth Amendment that was proposed by Congress and ratified by through the democratic process. It was based on a requirement read in by the court since then. Burger's opinion pretty much admits as much.

"And, many people assert that the Blakely rule is more 'inventive' than the rule applied in Roper or lots of other death penalty cases."

My particular target was Lockett. While people may legitimately say that Blakely was "inventive" (and indeed I argued against it myself), anyone who says it is more so than Lockett is seriously misinformed.

"It is all in the eye of the beholder."

No, not always. For some questions, application of the original understanding is debatable, as in Giles. For others, though, it is not. Again, Lockett is the prime example.

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