Regular readers will know that Senator John McCain was not my first choice in the race for the presidential nomination. I disagree with some of his policy stances, but understand that the president’s role on policy is constrained to the bully pulpit, and his use (or pocketing) of the veto pen.

Aside from his role as commander in chief, one I am satisfied Sen. McCain will fulfill with the highest regard for the best interests of our nation, the presidential power of appointments, particularly judicial appointments, can not be over emphasized.

The speech given by Sen. McCain at Wake Forest University on Tuesday expressed a clear understanding of the role of the judiciary and the importance of having a president who will nominate men and women that understand that role.

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. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.

Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future.

I believe that potential nominations from Sen. McCain would be quite different than those put forth by either of his opponents.

For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it — and I quote — should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill 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.

It is this presidential power that concerns me most about Clinton and Obama, and encourages my support of Sen. McCain. It is a power that can not be over looked, or over emphasized.

Or so AP is reporting:

President Bush has settled on Michael B. Mukasey, a retired federal judge from New York, to replace Alberto Gonzales as attorney general and will announce his selection Monday, a source familiar with the president’s decision said Sunday evening.

Mukasey, who has handled terrorist cases in the U.S. legal system for more than a decade, would become the nation’s top law enforcement officer.

Speculation is that he will be easier to confirm than Ted Olson, who was also considered to be in contention for the post. Some on both sides were itching for a confirmation battle. Earlier today Ed Morrissey had this to say on that subject:

While an argument can be made for having an argument, an equal and better argument can be made for quietly working for a candidate who will not inspire immediate partisanship. For one thing, Justice is a mess, and a smooth transition will make its recovery more quick. Also, having these partisan fights for the sake of having them does damage to political discourse and in the end achieves little more than increased rancor — especially if other candidates will push for the same policies and objectives. That’s more a knock on Congress and the Democrats, whose knee-jerk opposition to Olson is both substanceless and insulting. In the present climate, and with the administration rightly focusing its political strength on keeping the mission going on Iraq, it makes more sense to give a little on this appointment as a balance.

Of course, in today’s political climate nearly every confirmation turns in to a circus. Let’s see what shakes out after the official announcement.

Help me fix the car and get back on the road!

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fine folks have donated $. $ is still needed. Thanks!

My home state gets it right!

In a victory for private property rights, the state Supreme Court ruled Wednesday that local governments can’t seize land against the owner’s wishes simply because the property is underused.

The court ruled unanimously that only “blighted” areas are authorized under the state Constitution, and that the Legislature did not intend for eminent domain to be used when the sole basis is that the property is “not fully productive”.

I just wish that Supreme Court understood this as well.

I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Except they did. The Bipartisan Campaign Reform Act, aka McCain-Feingold, aka The Incumbent Protection Act, creates a serious abridgment of free speech while doing little to achieve it’s intended purpose of reducing the influence of big money in political campaigns.

One major provision of the act, the part banning issue advertising referring to candidates for federal election without expressly advocating their election or defeat in the 60 days prior to a general election, was loosened by a federal court today.

The 2-1 ruling said groups may mention candidates by name in commercials as long as they are trying to influence public policy, rather than sway an election.

[...]

Wisconsin Right to Life, an anti-abortion group, has been fighting the law since 2004, when it sought to run an advertisement urging voters to contact Wisconsin Sens. Russ Feingold and Herb Kohl, both Democrats, and ask them not to hold up President Bush’s judicial nominees.

Because Feingold was running for re-election in 2004, the ad was prohibited. Wisconsin Right to Life argued that it wasn’t trying to influence an election and said the law restricted its constitutional right to petition the government.

While the court did not address the entirety of the Act it did seek to modify this one provision, as Captain Ed notes.

The restriction on political speech that keeps groups from buying advertising that names politicians violates the fundamental reason for the First Amendment — to allow Americans to criticize their elected officials. While the court did not recognize the entire egregiousness of this BCRA provision, it did recognize that the idea of never being able to name elected officials in advertising within 60 days of an election regardless of the nature of the reference is a ludicrous standard.

The case now heads to the Supreme Court for an automatic review. What the court will decide is anything but clear. However, Ed lays out the various choices very well.

They can overturn the ruling of the judges, reaffirming the BCRA and its assault on free political speech. They can, as the AP notes, uphold the narrow nature of today’s ruling and create a complicated test for “honest” references to elected officials in issue ads. Lastly, the newly-constituted Roberts court can take this opportunity to reverse the biggest assault on overtly political speech unmatched in generations.

Overturning the ruling would be a chilling continuation of this affront to free speech. Creating a test that would accurately and fairly “test for “honest” references to elected officials in issue ads” is hard to envision working. From the AP story:

The Federal Election Commission had argued that it needed a consistent “bright line” rule to prevent organizations from influencing elections using phony issue advertisements, but the three-judge panel disagreed.

“The virtues of a bright-line rule surely cannot alone justify regulating constitutional speech,” U.S. District Judge Richard Leon wrote. [my emphasis]

We can hope that Ed’s third option, “reverse the biggest assault on overtly political speech”, is the one the court takes.

The optimist it me can see it happening.

My inner pessimist isn’t holding it’s breath.

Cross-posted at Iowa Voice where I’m supposed to be helping Brian while he’s away.

The first cup is for the guest, the second for enjoyment, the third for the sword. ~ An old Arabic saying

Don Surber LA Times’ unconstitutional suggestion — “Conservatives know what the word bipartisan really means: Republicans capitulating to Democrats. The LA Times in an editorial today takes it one step beyond, bending it to mean the Republican elected to run the executive branch surrendering his duties to a Democratic Congress.”

Right Truth (Debbie) Lebanese walk all over Syria and Iran — “As I enjoyed the peace and quiet of my home with beautiful weather here in Tennessee on Thanksgiving Day, I watched the freedom-loving people in Lebanon, again, take to the streets in protest of Iran and Syria. Tens of thousands of Lebanese people paid tribute to assassinated Christian politician Pierre Gemayel in Beirut. They were not giving thanks, they were mourning the death of yet another good leader.”

So, has everyone gone shopping, or are you sleeping off your holiday celebrations?

The drink that comforteth the brain and heart and helpeth digestion. ~ Sir Francis Bacon

Happy 1st Blogiversary to:
Dry Bones Blog

Captain’s Quarters (Ed Morrissey) Doubling Down — “George Bush signaled yesterday that he will continue to fight for his judicial nominations. He sent the Senate the names of five judges previously nominated for appellate court positions, including at least one whom the Democrats had threatened to filibuster:”

Flopping Aces (Wordsmith) The “Big Myth” — “Ok…now this is one of those “big lies” that the mainstream media pushes….kind of like the 16 words in the President’s State of the Union Address. I have never been led to believe that Iraq/Saddam attacked us on 9/11 by the Bush Administration. And yet, this is what many of the critics keep telling us.”

GOP Bloggers (Mark Noonan) The Fractured Democratic Party — “Emanuel represents raw political power, Dean represents raw political emotion – and if things go smash as I expect them to for the Democrats this November, then look for their to be a major fight between the two sides – a fight which could permanently wreck the Democratic Party.”

In The Bullpen (Chad Evans) List of Proposed Sanctions Upon Iran — “In terms of what Iranian leaders have told the public relating to the nation’s supposed full cooperation with the IAEA and a transparent nuclear program, the NYT reports the IAEA report likely will shed some light on just how false those statements are.”

The busy little bees in the Senate confirmed the nomination of Brett Kavanaugh to the U.S. Court of Appeals, D.C. Circuit today.

White House aide Brett Kavanaugh won Senate confirmation as an appeals judge Friday after a wait of nearly three years, yet another victory in President Bush’s drive to place a more conservative stamp on the nation’s courts.

Kavanaugh was confirmed on a vote of 57-36, warmly praised by Republicans but widely opposed by Democrats who said he is ill-suited to sit on the U.S. Court of Appeals for the District of Columbia.

In a statement, Bush said Kavanaugh will be “a brilliant, thoughtful and fair-minded judge.”

The usual suspects were less pleased.

“It’s clear that he is a political pick being pushed for political reasons,” said Sen. Patrick Leahy (news, bio, voting record) of Vermont, the top Democrat on the Senate Judiciary Committee. “This is not a court that needs another rubber stamp for this president’s exertion of executive power.”

[...]

Ralph Neas, president of the liberal-oriented lobbying group People for the American Way, said that Bush and Senate Republicans “have succeeded today in putting a partisan lapdog into a powerful, lifetime position on the federal bench. Brett Kavanaugh has spent his career as a partisan operative, carrying out the will of the Bush administration and twisting legal arguments to benefit his political ideology. “

I can only watch the debate on the confirmation of Brett Kavanaugh in small bites. I was unfortunate enough to click back over while Dick Durbin was speaking. The comment I heard was, “Brett Kavanaugh doesn’t have the poorest credentials of any nominee, just the second worst.” [This is a paraphrase. I wasn't in front of the computer where I was watching.]

The reason seems to be that he was well liked by those he worked for, which Durbin parses to his nomination being a gift for services rendered.

Moron.

Just watched the vote limiting debate on the nomination of Brett Kavanaugh for the D.C. Circuit Court of Appeals on C-SPAN2. The final vote Aye 67 – No 30.

Coffee is a beverage that puts one to sleep when not drank. ~ Alphonse Allais

Right Wing News (John Hawkins) Bush’s Upcoming Speech On Illegal Immigration — “If Bush really wants to stem the bleeding on illegal immigration, what he needs to do is announce that he changed his mind and believes that the immigration bill needs to be split up into two parts. Bush could say that he wants the Senate to split its work on illegal immigration into two parts. The first part, would be a bill that deals solely with border security and immigration enforcement. In other words, the Senate should put together a bill similar to one in the House.”

Captain’s Quarters (Ed Morrissey) No Sitting, Just No Dimes — “Instead of staying home, we need to get more involved. If your Representative or Senator votes for pork, bigger government, and ignores border security, look for a credible primary challenger to represent conservative values instead. Organize and speak out on behalf of candidates and politicians who do the right thing, even if they don’t represent your district or state.”

Stop The ACLU (Jay) Bush To Address Nation On Immigration Monday — “So, will it be more lip service, or will he actually address the issue with real action? Will it be more of the same, or has the public outcry finally been heard? Will the speech be in English or Spanish?”

Michelle Malkin WHO’S RUNNING AMERICA? — “President Bush may finally be coming around to beefing up the border with National Guard troops, but it’s not stopping foreign governments and activist judges from interfering in the enforcement of our immigration laws.”

BitsBlog (David L) California judge: Stupid is good — “The San Fransico Chronicle has a story on a California judge, Robert Freedman, has deemed that all California high school diploma shall be worthless, and that school work shall not be rewarded. Freedman has ruled that California must give diplomas to students who not fluent in English and can not do simple math.”

Nancy Astor: “If I were your wife, I would put poison in your coffee.”
Sir Winston Churchill: “And if I were your husband, I would drink it.”

Captain’s Quarters (Ed Morrissey) Gray Lady Misrepresents FISA Testimony — “The New York Times has panicked into a serious misrepresentation of the testimony given to the Senate Judiciary Committee by five former FISA judges. Power Line looks at the transcript of the committee hearing and discovers that reporter Eric Lichtblau, who predicated his new book on the supposed illegality of the secret NSA terrorist surveillance program, wrote dishonestly about their appearance in yesterday’s hearing.”

Sister Toldjah TIME magazine publishes hit piece on Rahman and the Christian right — “Since when did Rahman become a “poster boy” for the Christian right? Does the Christian left not support religious freedom or something? Is the Christian left not concerned with the fact that a man was nearly put to death over the “crime” of converting to Christianity in a country where our military (and that of our coaltion) has shed blood and lost lives fighting for things like religious freedom?”

The Jawa Report (Bluto) Cynthia McKinney: Why She Punched That Pesky Cop — “Cynthia McKinney (D-GA) allegedly assaulted an officer of the law earlier today, when he failed to recognize her as she rushed past a metal detector. While members of Congress are not required to go through the Capitol metal detectors, they are supposed to present their credentials. McKinney was in too big a hurry to be bothered complying with one of the people who help ensure her safety.”

Michelle Malkin DOCUMENTS OF THE “UNDOCUMENTED” — “Search Google News for the term “undocumented.” You’ll get thousands of hits like these:” [Great visuals. -- Jim]

Blogs for Bush (Mark Noonan) The Death of the Guest Worker Program? — “While the Senate bill on immigration reform has a provision for allowing illegals currently here to remain (in a sort of modified guest worker program), Senator Frist – testing the waters for a Presidential bid and also understanding of political reality – seems to be backing away from support for anything hinting of amnesty.”

This ought to cause the lefties to sputter, spurt, pout and throw a hissie fit.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution “as it was originally written and intended.”

“Scalia does have a philosophy, it’s called originalism,” he said. “That’s what prevents him from doing the things he would like to do,” he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the “living Constitution.”

“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break.”

“But you would have to be an idiot to believe that,” Scalia said. “The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”

Now it’s the “idiot’s” turn. Reading what they have to say on this should be fun.