McCain's activism

Jeffrey Toobin listened to McCain's speech on appointing federal judges -- a speech he delivered in as obscured manner as he possibly could -- and hears the dog whistles for the conservative base.

The giveaway here was that McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death. Justice Anthony M. Kennedy’s opinion overturned the sentence and held that the Constitution forbids the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” refers to Kennedy’s observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 have been China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. According to McCain, the United States apparently belongs on this dismal list.

Nor were his references to penumbras and emanations accidental. Those words come from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the Justices recognized for the first time a constitutional right to privacy, and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It comes from the Court’s 1992 opinion in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v. Wade, and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a dog whistle for the right—an implicit promise that he will appoint Justices who will eliminate the right to privacy, permit states to ban abortion, and allow the execution of teen-agers.

Toobin goes on to explain that, unlike most McCain positions these days (the Bush/McCain Iraqi debacle not included), McCain really means it.