McCain Does Not Mention Roe During Speech On Judiciary; Advocates Say He Used Coded Language

Main Category: Abortion
Also Included In: Public Health
Article Date: 08 May 2008 - 5:00 PDT

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Sen. John McCain (R-Ariz.) failed to mention Roe v. Wade in a speech Tuesday outlining his judicial philosophy at Wake Forest University in Winston-Salem, N.C., the Miami Herald reports. The speech led some abortion-rights advocates to criticize the senator for his lack of "straight talk." McCain's campaign also announced its "Justice Advisory Committee," which will be co-chaired by former U.S. Solicitor General Ted Olson and Sen. Sam Brownback (R-Kan.) (Stearns, Miami Herald, 5/7).

During his speech, McCain said if elected president, he would appoint justices who are similar to Supreme Court Chief Justice John Roberts and Justice Samuel Alito (Bumiller, New York Times, 5/7). "I will look for people in the cast of John Roberts, Samuel Alito and my friend the late [former Chief Justice] William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference," McCain said. He added that he would "look for accomplished men and women with a proven record of excellence in the law and a proven commitment to judicial restraint" (Gaynor, Reuters, 5/6).

According to the Wall Street Journal, McCain's speech included references that "appeared calculated to reassure judicial conservatives." Although McCain did not name any Supreme Court justices he believes have abused their powers, he criticized justices for using the words "penumbras" and "emanations." McCain said such words are "airy constructs ... the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning." According to the Journal, these words come from the court's 1965 decision in Griswold v. Connecticut to strike down a state ban on contraceptives for married couples. In that decision, the court found that marital relations fell within a "penumbra" of various provisions that created a "zone of privacy." According to the Journal, some evangelical leaders interpreted McCain's remarks as critical of the 1973 Roe decision, which found that constitutional privacy guarantees include abortion rights (Bravin/Holmes, Wall Street Journal, 5/7).

Elizabeth Shipp, political director for NARAL Pro-Choice America, said McCain is "learning the secret code," adding, "The secret code is what he has to say in public when people are actually paying attention to him to appeal to independent and pro-choice Republican voters. He can't come out in a major speech and say, 'Yeah, I want to see Roe v. Wade overturned" (Miami Herald, 5/7). Tony Perkins, president of the Family Research Council, said that the issue of judicial nominations could help McCain garner support among social conservatives. "Conservatives want judges who will not legislate from the bench, because when we allow judges to legislate from the bench we get abortion on demand, we get same-sex marriage, we get everything that's bad for society," Perkins said (Reston, Los Angeles Times, 5/7).

McCain Criticizes Obama, Clinton

McCain in his speech also criticized Democratic presidential candidates Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.) for voting against the nomination of Roberts and Alito, Reuters reports. Obama and Clinton "have very different ideas [about the powers of the Supreme Court] from my own," McCain said, adding that they "don't seem to mind at all when fundamental questions of social policy are pre-emptively decided by judges instead of by the people and their elected representatives." Referring to Obama, McCain said, "Apparently, nobody quite fits the bill (for the court) 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" (Reuters, 5/6).

Obama spokesperson Tommy Vietor said that Obama "has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves" (Eilperin, Washington Post, 5/7). Obama's campaign also said that McCain would choose judges who represent a threat to abortion rights and to the McCain-Feingold federal campaign finance law (Quaid, AP/Google.com, 5/6).

Clinton Campaign Policy Director Neera Tanden said, "In an effort to pander to conservative voters, Sen. McCain has signaled his intention to appoint right-wing judges who are committed to rolling back women's rights and civil rights, elevating the interests of big business over the rights of workers and consumers, affirming executive branch power grabs and undermining our common core freedoms." She added that Clinton "has a different vision. She will appoint judges who respect the separation of powers, are steadfast in protecting civil rights and liberties, including the right of privacy, and who cherish equal justice under law" (Reuters, 5/6).

McCain has repeatedly voted against federal funding for abortions; opposed federal Medicaid funds for abortions, even in cases of rape or incest; voted to require parental consent for minors seeking abortions; and voted to criminalize anyone but parents crossing state lines with minors to help access abortions. McCain also supported a ban preventing women in the military from getting abortions with their own money at overseas military hospitals (Daily Women's Health Policy Report, 5/6).

Editorial

McCain is "determined to move a far too conservative and far too activist Supreme Court and federal judiciary even further and more actively to the right," a New York Times editorial says. McCain's speech "predictably criticized liberal judges, vowed strict adherence to the Founders' views and promised to appoint more judges in the mold" of Roberts and Alito, according to the Times. Actions taken by the court since the appointments of the two justices, including "constrain[ing] women's right to choose," are "just what the country does not need," the editorial says, adding that McCain's speech suggests an "additional metric" for the Democratic candidates to explain to voters why the country cannot "afford another president committed to packing the courts with activist, right-wing judges" (New York Times, 5/7).

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