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Senator John McCain gave a speech (web site) recently on the need to appoint judges that interpret laws rather than legislate from the bench. There was a lot to like about what he had to say on judicial activism. McCain said, "The moral authority of our judiciary depends on judicial self restraint," and railed against the "systematic abuse" by judges who push their liberal agendas through judicial fiat. He also took issue with "Senate obstructionism" practiced by liberals who are blocking the president's judicial nominees. The speech seems designed to help McCain firm up his conservative base.

But here's the problem. Senator McCain has made it harder to confirm judicial conservatives to the bench. (Judicial Watch neither opposes nor endorses candidates for public office.)

While Senator McCain's speech properly chastised liberals in the Senate for blocking judicial nominees, what did McCain do when he had the chance to help stop them cold? Well, here he is, in his own words:

"Of course, in the daily routine of Senate obstructionism, presidential nominees to the lower courts are now lucky if they get a hearing at all. These courts were created long ago by the Congress itself, on what then seemed the safe assumption that future Senates would attend to their duty to fill them with qualified men and women nominated by the president. Yet at this moment there are 31 nominations pending...Things almost got even worse a few years ago, when there were threats of a filibuster to require 60 votes for judicial confirmations, and threats in reply of a change in Senate rules to prevent a filibuster. A group of senators, nicknamed the "Gang of 14," got together and agreed we would not filibuster unless there were 'extraordinary circumstances.'"

McCain went on to defend the deal he helped broker, saying it "showed that serious differences can be handled in a serious way, without allowing Senate business to unravel in a chaos of partisan anger."

I have two responses to these statements.

First, using a filibuster to block an up-or-down vote on judicial nominees is flat out "unconstitutional." (See Judicial Watch's landmark lawsuit (web site) filed against the Senate.) I don't care how "extraordinary" the circumstances, there is never a good reason to violate the U.S. Constitution's "advice and consent" clause in the interest of political expediency.

And second, no one was advocating the "chaos of partisan anger" as the antidote to the liberal hijacking of the judicial confirmation process. Principled conservatives simply were asking that the Constitution's rules be followed by the U.S. Senate in the consideration of judicial nominations. That "chaos of partisan anger" talk sounds more like Patrick Leahy than a principled conservative.

In the end, some fine judicial nominees who would have embodied McCain's stated judicial philosophy are not on the bench because of him and his "Gang of 14."

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