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Monday, October 22, 2007

A Time For Honesty: John McCain & Judicial Activism

Don Byrd of the Baptist Joint Committee's Blog from the Capital has posted a collection of quotes from the recent Values Voter Summit hosted by the Family Research Council. Check it out.

Here's a quote from John McCain:

My friends, if America stands for anything, it stands for the freedom to follow our own hearts, to determine our own relationship with God. Our Constitution did not establish a national religion, but neither did it banish any worship. Religious freedom does not require Americans to hide their faith from public view or that communities must refrain from publicly acknowledging the importance to them of faith.

Judges should not legislate from the bench and actually restrict religious freedom by banning its expression in the public square. (Applause.) And I am proud to have played a role, and a major role, in the confirmation of Judges Alito, Roberts, and many others. (Applause.)

A Values-Voter Summit wouldn't be the same without at least a handful of references to judges who supposedly legislate from the bench. Ironically, the most egregious example of judicial activism in a religious liberty case came from the pen of Justice Antonin Scalia - a conservative if there every was one....

Scalia's majority opinion in Oregon v. Smith (1990) completely "gutted" the free exercise clause of the First Amendment. A wise Baptist church-state expert described Scalia's opinion as "an outburst of judicial activism unworthy of a conservative judge...Scalia gutted the free exercise clause from the First Amendment calling its application 'a legal luxury we can no longer afford.' And this is the same justice who had protested so loudly in the confirmation process that the Supreme Court should only interpret law?"

This most notable instance of "legislating from the bench" caused the ACLU and Americans United to join up with Concerned Women for America and the Traditional Values Coalition in order to pass the Religious Freedom Restoration Act to restore pre-Smith free exercise rights. Talk about strange bedfellows!

But John McCain knows better. He himself voted to correct Justice Scalia's gross "outburst of judicial activism." Religious freedom has been restricted at the hands of McCain's fellow conservatives! It's just a wee-bit dishonest to continue this "blame the liberals" game that Republican politicians and righteous "values voters" play year in and year out.

Next time you hear a Republican like John McCain moaning an groaning about the need for strict-constructionist judges who won't "legislate from the bench," remember Antonin Scalia and Oregon v. Smith.

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Blogger D.R. said...


Have you read Jeffrey Toobin's "The Nine" yet? I saw him in an interview on CSPAN in which he explained that "judicial activism" as well as "upholding precedent" were both false labels that the right and left attempt to apply to each other. He noted that when judges believe one way or the other they will act in accordance and ignore so-called rules of "judicial activism" and "precedent." He also pointed out that the term "strict constructionist" is not at all accurate either, as seen in the dissent of Gonzales v. Oregon.

I think all this goes to show that political labels often tend to blur and confuse, rather than to bring clarity. And McCain feeding this frenzy is becoming more and more commonplace. Though to McCain's credit, he has done much better in the last couple of debates. And, though this doesn't necessarily apply here, to the points that have been made about Huckabee and the SBC endorsement, it looks like there are growing numbers of non-SBC conservatives pressing for Huckabee, which are bumping up his poll numbers after the debates.

3:50 PM

Blogger texasinafrica said...


I've long believed that "judicial activisim" is just a word for "disagrees with me."

1:06 PM


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