A follow-up to my post earlier today. Let’s look at some of Jeffrey Toobin’s distortions in his decoding of John McCain’s recent speech on judges.
Discussing McCain’s reference to the Court’s 2005 ruling in Roper v. Simmons, Toobin finds it telling that “McCain did not reveal the subject matter of this supposed judicial outrage,” which, Toobin says, was that “a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death.” But it’s Toobin’s summary—suggestive of a mere burglary gone awry—that hides far more than it reveals. From my July 2005 testimony to the House Judiciary Committee, here’s a fuller account, with quotations from Justice Kennedy’s majority opinion:
When he was 17, Christopher Simmons planned, instigated, and committed a brutal murder. “Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends …. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.”
In the middle of the night, Simmons and a friend “entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, ‘Who’s there?’ In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.”
“Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.”
Toobin recites Kennedy’s list of the only other countries to execute “juvenile” offenders and adds, “According to McCain, the United States apparently belongs on this dismal list.” No. The heart of McCain’s critique is that within the bounds of the Constitution the people of each state, through their legislators—and not the Supreme Court—ought to be setting criminal penalties. Further, as Justice Scalia explains in his dissent, Kennedy’s “startling conclusion” that juries “cannot be trusted with the delicate task of weighing a defendant’s youth” “undermines the very foundations of our capital sentencing system.”
In his closing paragraph, Toobin, echoing Ronald Dworkin’s metaphor (as well as his hysteria), warns of a four-justice “phalanx that is more radical than any that the Court has seen since F.D.R.’s appointments.” Among his contentions in the one sentence of supporting argument that he musters: “the Roberts Court has crippled school-desegregation efforts” (so much for the distinction between desegregation and racial quotas) and “approved a federal law that bans a form of abortion” (it’s best, I suppose, not to let New Yorker readers in on the fact that the ruling was plainly correct, on what that “form of abortion” was, on how many prominent Democrats voted for the ban on partial-birth abortion, and on how opponents of the ban (including Toobin) recklessly spread lies about it).
Toobin is right that the stakes in the upcoming presidential election are “very, very high” for the Supreme Court. But he obscures what the stakes are. If Obama wins, he will appoint liberal judicial activists who will continue the Left’s project of depriving American citizens of their powers of representative government. Invention of a federal constitutional right to same-sex marriage is only one float in the very real parade of horribles that would ensue. If McCain wins, I am hopeful that he will appoint justices who will restore abortion to the democratic processes and practice judicial restraint generally (while of course enforcing those rights that are in the Constitution and are justiciable). If so, Toobin and his New Yorker readers will be able to seek to adopt their preferred policies through their representatives. In short, it’s Obama, not McCain, who has the radical vision of judicial power.