Our friend RC2 has some worthwhile second thoughts on McCain’s speech. She’s right that appointing good judges is only a part of the solution. McCain may or may not be aware of the other part, but I don’t think he should necessarily telegraph his punch there. If he were campaigning to educate rather than to win, perhaps he should have said something, but why pick a fight before the fight can actually be consequential, when all it can do is give you bad press and hand your opponent a stick with which he’ll beat you from now until November?
I’m happy in my role as private citizen to say that the Court doesn’t have the final word on the constitutionality of a law, that Presidents and members of Congress are also entitled to their views about constitutionality, that a court’s declaration that a law is or isn’t constitutional shouldn’t necessarily prevent Congress from legislating or require the President to enforce, and so on. I make such arguments in the classroom all the time. But I’d rather make them in public on behalf of a President who is rightly resisting a wrong-heaed Supreme Court decision or a Congress that’s seeking to act despite a "respectable" (but not conclusive) body of opinion that the measure is, or that the Supreme Court would find that the measure is, unconstitutional.