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Wednesday, May 07, 2008

Cassell on McCain

I have little doubt that Paul Cassell has forgotten more law than I will ever learn, and I trust Tom Smith's repeated assurances that his brother-in-law is a capital fellow.  I enjoyed a number of his rulings as a federal district court judge.  But his post yesterday on John McCain's speech setting forth his "judicial philosophy" was not his finest moment.  In substantial part, here is what Cassell has to say about McCain's speech:

From a conservative perspective, he says all the right things. I take him at his word. I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.

Cassell is entitled to take McCain at his word, I suppose -- although at least a couple of witnesses earlier suggested that McCain, who voted to confirm Justice Alito and now cites him as an example of the kind of judge he would appoint, privately said that if he were president he would not have appointed Alito.  And, of course, unless Cassell thinks campaign finance reform legislation presents no First Amendment problems, he ought perhaps ask whether McCain's deeds, and not his TelePrompted words, pose any problems for him.  Maybe Cassell could at least shift from the slavish "take him at his word" to the slightly more skeptical "trust but verify." 

But it is meaningless to say that McCain "says all the right things" in his speech, because the truth is that McCain says nothing much at all. 

Richard Posner has quite rightly pointed out on several occasions the extent to which lawyers and judges spout "the loftiest Law Day rhetoric," and how little heft and substance that rhetoric has.  This is true, in spades, of McCain's speech.  This is all strictly warmed-over stuff: the usual pap about "fidelity to the Constitution" combined with a cut-and-paste attack on "judicial activism."  I don't mean to sneer at those values; but at this level of generality, as Cassell should know, they mean as much, and as little, as motherhood and apple pie. 

Even at this level of generality, McCain's speech is not even particularly coherent or honest.  The "clear powers defined by our Constitution" are, in truth, not clearly defined.  Whether the judiciary respects the separation of powers or not, it is surely not the single "great exception" to the proper working of checks and balances in the system: has McCain forgotten the Terri Schiavo legislation or the current Executive Branch's substantial and largely covert rescinding of public law?  Whether or not the Ninth Circuit was right in Newdow, it is foolish hyberbole to say the courts have acceded to the desire to "rid our country of any trace of religious devotion," unless McCain is unaware of the extent to which even strongly separationist courts have championed vigorous religious speech in the broader public square.  And so on. 

I do not mean, by pointing out these little contradictions and inaccuracies along the way, to say that McCain's speech is fatally flawed or wrong.  In fact, there is much in it I agree with.  But that should not be surprising: it is sufficiently vague and fatuous that there is something for almost everyone to the right of Duncan Kennedy to agree with.  Ultimately, however, it leaves us little of substance to conjure with.  If that is what satisfies Cassell, he is an easily satisfied man. 

And there, I think, lies the real, and dual, message of Cassell's post, which is so well summed up in this sentence:  "I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture."  This suggests two conclusions to me.  First, we see here an example -- and not the first since McCain became the GOP nominee -- of trying to turn defeat into a victory of sorts: if we must put up with a maverick candidate who was singularly despised and opposed by the vast majority of the party's pros in and out of office, we can at least pretend he has been an establishment man all along.  Second, in that "rankle the folks" language, we see the age-old cry from conservatives to their candidate, one that is as often echoed on the left: "Do whatever you want as President -- just please, please, give us the Justice Department." 

Make no mistake.  Whatever he may say, unless he is fooling himself, Judge Cassell is not, and should not be, satisfied by McCain's speech.  The proper description of his sentiments here is "mollified."

Posted by Paul Horwitz on May 7, 2008 at 02:17 PM in Constitutional thoughts | Permalink


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This may not be what Paul H. had in mind, but I do think that if Paul C. was "satisfied" by McCain's speech, it's hard to see how it could be on the basis of the things actually said in the speech. The simple reason is that, like many politicians' statements about the courts and judging, the speech is full of hackneyed lines that the speaker himself obviously does not believe, at least not in any evenhanded way.

E.g., McCain's speech includes the following, familiar set of attack lines against "judicial activism" (he doesn't use that precise phrase, but he doesn't need to; we all know what he's talking about):

"For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically."

McCain follows that passage up with some examples of what he's talking about. Included among them are the Supreme Court's decision in Kelo and the Ninth Circuit's decision in Newdow. He makes it clear enough that he doesn't like either decision, and on the basis of mere outcome voting I guess Paul Cassell and other conservatives could take some "satisfaction" in that, at least with respect to those two discrete issues. (McCain doesn't acknowledge the fact that the Supreme Court's most conservative member, Justice Thomas, essentially conceded that the Ninth Circuit's decision was consistent with existing Supreme Court precedent, but never mind. And he doesn't acknowledge that a contrary decision in Kelo may well have required overruling Supreme Court precedent, an act that principled conservatives would presumably worry about, but never mind.)

The problem, though, is that McCain's speech doesn't disclose the contents of any organizing principle that can accommodate his dislike for both Kelo and Newdow. One of those decisions did indeed involve a judicial "ruling[] . . . on [a] policy question[]" that its opponents may think "should be decided democratically." That's Newdow. But it's certainly not Kelo, which after all involved the Supreme Court's *refusal* to countermand actions taken by democratically accountable government actors. So McCain's attack on these decisions can't be taken as a principled stand against "judicial activism" per se. Instead, it looks like a stand against judicial activism when he thinks they shouldn't be activist, and against the *refusal* of judges to be activist when he thinks they should be.

But of course McCain doesn't openly admit in his speech that his appeals to judicial restraint are biased in this manner. Nor does he articulate any general principle that we could apply going forward to know what kinds of judicial activism McCain approves. His advisor Ted Olsen is a big proponent of judicial activism in the affirmative action area; does McCain think that's another area where courts should make "ruling[s] . . . on policy questions" that others think "should be decided democratically"? The text of this speech certainly won't tell you.

To be clear, McCain is as entitled as anyone else to recite principles that he doesn't really believe, and to adopt positions rife with self-contradictions. He wouldn't be the first to do so, nor would he be the last. My point here is that a speech like this doesn't, by its terms, tell us much about what McCain's principles actually are in this area. So if Paul Cassell or others decide that they comprehend and are satisfied with McCain's biases (and, of course, they're free to do so), I think it has to be based on something other than what McCain actually said.

Posted by: Trevor Morrison | May 8, 2008 8:32:02 AM

It occurs to me that we may be disagreeing because you assume that "satisfied" means "intellectually satisfied" while I think Cassell meant "satisfied" to mean "sufficiently persuaded that McCain would nominate judges I would like that I will support McCain." But then maybe that's not different than what we said above.

Posted by: Orin Kerr | May 7, 2008 6:48:30 PM

In any of the roles you posit, including that of political conservative, I assume the relevant standard should be one of sound judgment and something more than merely strategic calculation; and on that standard I find it hard to see how McCain's boilerplate makes a filling meal.

This is where we disagree, Paul.

Maybe some context would be helpful. Many conservatives feel that they have had a hard time in the last few decades getting what they perceive as "solid conservatives" appointed to the Supreme Court. Yes, there have been many vacancies filled by Republican presidents, but Republican nominees have been hit or miss. Sometimes conservatives get Scalia, but sometimes they get Souter.

In light of this, conservatives often ask themselves a question about Republican presidential nominees: If elected, will this nominee take the need for conservative judges seriously, or will they not take this issue seriously? To many conservatives, their support for a Republican President stands or falls on this issue.

It seems to be that Cassell is just trying to answer this common question out loud in the case of McCain. He's trying to guess if McCain is serious on the issue, and if conservative voters will realize that. Perhaps it is only "strategic calculation," but if so then it's the strategic calculation on which our democracy is based: Choosing who to vote for based on whether the candidate would do what the voter wants. It's not going to be published in the Harvard Law Review, but that's because it's just a prediction of how a candidate would act if elected and how voters might respond.

Posted by: Orin Kerr | May 7, 2008 6:13:38 PM

Orin, thanks for the comments. I certainly tried to make my posting something other than a personal attack on Cassell, who as I suggested I have every reason to believe is a fine person and a fine jurist. The chink in my armor might be the second point you pick up on, whether in characterizing his reaction for myself I'm suggesting he's being sneaky. The "whatever he may say" language certainly lends itself to that interpretation, and I'm willing to take criticism for that. I think what I am saying most strongly is that if Cassell is satisfied with the speech, he shouldn't be, since the speech is neither new nor meaningful. I'll try not to go beyond that and characterize his motives, and to the extent I do I can rightly be chastised.

On your first point, I did not have any particular perspective or role in mind for Cassell when I posted, and I don't think my post suggests otherwise. In any of the roles you posit, including that of political conservative, I assume the relevant standard should be one of sound judgment and something more than merely strategic calculation; and on that standard I find it hard to see how McCain's boilerplate makes a filling meal.

Finally, you suggest that Cassell is simply trying to see what kind of judges McCain would appoint. I have two responses to this. The first is that it seems to me that one could read Cassell as reaching some conclusion on this point by reading and evaluating McCain's speech for its substance and not just viewing it for its signaling value. If that is the case, then he's engaging in slightly more substantive evaluation than your comment might suggest, and I say again that in my view McCain's speech is too thin a gruel to base any sound judgment on.

Second, we could read Cassell as simply acknowledging that McCain's speech is a form of signal to the conservative ranks that he won't be a maverick when it comes to judicial nominations. (Mickey Kaus calls the speech part of his "Reassure Conservatives Day.") Then substance doesn't matter; the important thing is that McCain, through no matter how rote a speech, has given a nod to the conservative constituency that they will get the judges they want; they won't have to fear being "rankled." Isn't that pretty well the very definition of being "mollified?"

Again, this wasn't a personal sortie against Cassell, except to the extent that my starting assumptions about him are generally favorable, and I find the McCain speech so banal, that I was struck and disappointed by Cassell's reaction, and woebegone that someone so smart would take boilerplate "at [its] word" or, on your reading, seek compliance rather than substance from a presidential candidate.

Posted by: Paul Horwitz | May 7, 2008 5:13:36 PM


Cassell can certainly respond for himself, but I am puzzled by your comment. First, you seem to assume that Cassell was posting as a legal theorist or as a legal academic. But Cassell prefaces his comment by making his perspective clear: He says that he is writing "From a conservative perspective". Indeed, his comment as a whole indicates that he is writing from the perspective of a political conservative who is trying to get a sense of what kinds of judges a President McCain might nominate. His conclusion: he believes that a President McCain would appoint politically conservative judges.

You seem to see some mysterious hidden message in this comment that needs to be teased out, but it seems to me that Cassell is being pretty upfront and direct about what he is valuing. And while you can certainly disagree with whether Cassell should be satisfied with the speech, I don't understand why you think he is somehow being sneaky and only pretending that he is.

Posted by: Orin Kerr | May 7, 2008 4:32:43 PM

Another shrewdly observed post, Paul.

Posted by: Anon | May 7, 2008 4:22:00 PM

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