Soccer Dad

The judicial mccain

The Volokh Conspiracy.Ilya Somin writes of doubts conservatives could have about John McCain as nominator of future Supreme Court justices.

If he wants to have any chance at all of saving McCain-Feingold, a President McCain will have to appoint justices committed to upholding it. As a practical matter, however, there are few if any conservative jurists who are both 1) qualified to sit on the Court, and 2) likely to vote McCain's way on campaign finance issues; I can't think of even one offhand. Almost any well-known jurist likely to vote the conservative way on federalism, property rights, abortion, and other major constitutional issues is also likely to be just as committed to striking down McCain-Feingold as the conservatives currently on the Court. Thus, McCain will be strongly tempted to appointmoderate to liberal justices or a "stealth" candidate like Justice Souter with no clear judicial philosophy. The stealth approach failed for George W. Bush when the Harriet Miers nomination blew up in his face. However, McCain might do better with it, since he would be facing a Democratic-controlled Senate rather than a Republican one.

In other words a President McCain would be interested in cementing his record as a legislator by preserving McCain-Feingold, so he would be more inclined to nominate judges who would be inclined to uphold the law, despite its obvious first amendment problems.

Today, in McCain and the Supreme Court Professors Steven Calabresi and John McGinnis argue that McCain is the better bet (of the two remaining viable Republican candidates) to appoint justices with a proper conservative philosophy.

First of all they argue that the importance of nominees to the Supreme Court is magnified by the fact that starting the next term six of the sitting justices will be over 70. (For whatever reason Supreme Court justices seem to blessed with longevity, so I'm not sure that this is necessarily reason for concern.)

So the first concern of Profs. Calabresi and McGinnis is electability. Citing current polling they argue that McCain is more electable than Romney. They also point to Sen. McCain's record of voting for reliable conservatives to the Supreme Court. But what about his legislative legacy?

We recognize that there are two plausible sources of disquiet. Mr. McCain is perhaps the foremost champion of campaign-finance regulation, regulation that is hard to square with the First Amendment. Still, a President McCain would inevitably have a broader focus. Securing the party's base of judicial conservatives is a necessary formula for governance, as President Bush himself showed when he swiftly dropped the ill-conceived nomination of Harriet Miers.

Perhaps more important, because of the success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area. The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party.

The first reason; that he'd require "judicial conservatives" to govern effectively doesn't seem very convincing on its face. After all, it would be easier to get along with Democrats and not challenge them. (Of course, given his across the aisle outreach, especially in recent years, he might find Democrats more receptive to his nominees.)

Then the second reason that they don't dismiss McCain is

Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owens, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

The Gang of 14, it's been pointed out elsewhere, despite its problems, did ensure that a number of good nominees got to the bench.

While I'm still inclined to support John McCain, I wish that Profs. Calabrese and McGinnis had been a bit more convincing.

john mccain.