pageok
pageok
pageok
Calabresi & McGinnis on McCain & Judges:

Northwestern law professors Stephen Calabresi and John McGinnis make the case for McCain in today'sWSJ. Focusing specifically on judicial nominations, they argue that electability should be a conservative's paramount concern.

the gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the "Living Constitution" -- in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Calabresi and McGinnis suggest nominating Romney would risk a "Goldwater-like" electoral catastrophe, and that conservatives opposed to McCain are making the perfect the enemy of the "very good."

2L:
Goldwater, however, was a long-term success for the Republican party because it planted the seeds for the free-market, small-government revolutions of 1980 and 1994.
2.4.2008 8:27am
Temp Guest (mail):
John McCain: Bob Dole for 2008.
2.4.2008 8:31am
Chris 24601 (mail):
Not sure "anyone over 70 might be about to retire" fits perfectly well in an argument for McCain.
2.4.2008 8:44am
M (mail):
Too bad that hadn't taken head of Randy Barnett's point on constitutional cliches! That thing is full of them.
2.4.2008 9:09am
Sasha Volokh (mail) (www):
Romney = Goldwater????
2.4.2008 9:11am
PersonFromPorlock:
Well, if 'electability' is the criterion, why don't the Republicans nominate Obama? A principled loss a la Goldwater at least saves the party for the future; winning with McCain, maybe not.

Worse, there's no reason to assume McCain would win; some of his baggage (Keating Five, Tailhook hearings) is pretty distasteful.

Mind you, an unprincipled loss would be very... Republican.
2.4.2008 9:19am
T Drown:
"Goldwater, however, was a long-term success for the Republican party because it planted the seeds for the free-market, small-government revolutions of 1980 and 1994."

Perhaps, perhaps not. Was there a Goldwater in the British Conservative Party before there was Thatcher? What about in other Western nations that have pursued free-market, small-government policies in the 1990s and the past decade?
2.4.2008 9:22am
Rock Chocklett:
[McCain] is by far the most electable Republican candidate remaining in the race

How sound is this premise? I don't think McCain's ability to garner the support of independent voters in the primaries necessarily means he can do so in the general election, particularly if Obama is the Democratic candidate. Also, will a McCain nomination discourage the conservative base and suppress Republican voter turnout, which has already been low compared to turnout for the Democratic primaries? I mean, we even have Ann Coulter claiming she'll vote for Hillary if McCain is the nominee.
2.4.2008 9:35am
Allan (mail):
If the Democrats are elected and select a Supreme Court nominee far left of center, the conservatives can only blame one person: George Bush. Through his nominees, Bush has tilted this country far to the conservative side.

Were 75% of the country conservative, there would be few complaints. But it is not. Bush has polarized the country.

I hope to see the first two nominees be far left of center to balance Alito and Roberts. Then, I hope some will be appointed from the center.

As a voter and a citizen, I want balance, not zealotry on the Supreme Court.

One last thing. If the Democrats win the White House and the House, but only have, say, 55 or so seats in the Senate... Would any conservative be offended if the majority party used their majority to change the rules and prevent filibustering of judicial nominees?
2.4.2008 9:36am
ChrisIowa (mail):
There is a long way between now and November, it's too early to make a decision based on perceived electability.

While McCain may lead Hillary and Obama in polls now, his personality has me anticipating a Muskie Moment. I hope such a thing does not happen after he's clinched the nomination.

By the fall, the economy will be a bigger issue than Iraq, and Romney is far better positioned than McCain for a campaign based on the economy.
2.4.2008 9:42am
Temp Guest (mail):
Paul - like it or not - is not a contender.

Huckabee has very narrow appeal.

McCain - the darling of the liberal media, when they consider Republicans at all - is a Democrat in all but name (and seriously considered becoming one less than a decade ago) and has some very serious issues with ethics, mature behavior, and age.

Romney is an accomplished executive; the only candidate in either party who can claim this, aside from Huckabee. He even has a decent track record serving as the Republican chief executive in a state that is completely dominated by Democrats - a useful attribute for the next Republican president. His entire carreer is utterly devoid of corruption or any other scandal. His Mormon background guarantees a solid stance on issues important to social conservatives.

The polls mean nothing at this point: If the Republicans get solidly behind Romney, the corruption of Clinton and the leftism of Obama make them solid targets for a Romney campaign. McCain, on the other hand, starts without the support of the Republican base. -- This conservative stands with Ann Coulter on this. -- No Republican can win without the conservative base.
2.4.2008 9:44am
Tim Dowling (mail):
Just to be crystal clear, when the authors twice refer to the “judicial conservatives” in the GOP, they DON’T mean people who want judges who will follow their conservative beliefs, but rather people who want judges who will set aside their political conservatism and apply the law without regard to political considerations. “Conservative” means conservative except when the topic is jurisprudence, and then it means apolitical. Am I right about that?
2.4.2008 9:59am
Adeez (mail):
"McCain - the darling of the liberal media"

Last I checked, The Nation, The Village Voice, and Air America were not endorsing McCain. So, please, which liberal media outlets do you refer to?
2.4.2008 10:17am
Dodsworth:
Adeenz:

McCain is widely endorsed by liberal newspapers including the New York Times and the Los Angeles Times. Usually, this endorsement is paired with that Obama. I never understood the liberal attraction to McCain. It is skin deep, however.

McCain will go down in flames because of his support for the war in Iraq and the probable forthcoming war in Iran. The GOP's only chance was to outflank the Democrats by nominating an antiwar candidate like Ron Paul. Apparently, the GOP has a death wish and will choose to be destroyed by Jack Ripper clone who thinks it is funny to sing beach boy songs about bombing Iran.
2.4.2008 10:25am
Random3 (mail):
That would be the mainstream liberal media - NY Times, LA Times, USA Today, CNN, etc. The one's that people actually pay attention to (unfortunately).
2.4.2008 10:28am
Waldensian (mail):

Too bad that hadn't taken head of Randy Barnett's point on constitutional cliches! That thing is full of them.

You totally beat me to that comment. I had the same reaction.

From a different poster:

The GOP's only chance was to outflank the Democrats by nominating an antiwar candidate like Ron Paul.

Nominating Paul is the GOP's "only chance" to do what -- field a candidate who loses by 70 percentage points?!?
2.4.2008 10:44am
Cornellian (mail):
the gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal.

Raich v. Ashcroft
Oregon v. Gonzales
Lujak v Defenders of Wildlife
Terry Schiavo law
Signing statements
Bush v. Gore

Sorry, but I stopped believing Republican talking points on this issue a long time ago. Republicans oppose a "Living Constitution" except when they support it, and are opposed to "judicial activism" except when it gets them a result they want.
2.4.2008 11:00am
Justin (mail):
trite (trt)
adj. trit·er, trit·est
1. Lacking power to evoke interest through overuse or repetition; hackneyed.
2. Archaic Frayed or worn out by use.
2.4.2008 11:17am
Mark Field (mail):

On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century.


Does anyone else think the last sentence is inconsistent with the first two?
2.4.2008 11:26am
Al (mail):
I hope to see the first two nominees be far left of center to balance Alito and Roberts. Then, I hope some will be appointed from the center.

Allan, I'm curious...what supreme court justices (or potential nominees) would you consider "from the center"?

One last thing. If the Democrats win the White House and the House, but only have, say, 55 or so seats in the Senate... Would any conservative be offended if the majority party used their majority to change the rules and prevent filibustering of judicial nominees?

I don't see how this change would be possible. Didn't we hear all those solemn speeches from the Democrats and their media allies as to how critical the fillibuster was to our democratic system? You're not suggesting that the Democrats would make a 180-degree turn if the shoe is on the other foot, are you? /sarcasm off
2.4.2008 12:06pm
Ben P (mail):
On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century.


I have to say, the assertion that a democratic president getting to appoint a few new members would drastically change the composition of the court doesn't really make sense to me. Rather, the situation seems to be either a preservation of the status quo vs either preservation or continued conservative gains.

Although I'm clearly assuming a lot by going by age, it's probably the best indicator of any.

Stevens (age 87) is probably the first to retire, even under a democratic president, we're just getting a justice on the liberal wing replaced by either a liberal or moderate justice.


Ginsburg (74) - another potenital candidate in the next 8 years, and again, solidly in the liberal wing of the court. Her being replaced by a democratic president would chance little.

At the younger edge, we have Scalia (71), Kennedy (71), and Breyer (70), and Souter (70)

I have no inside information about the health of any of these people, but given Stevens record, it seems that any of them could stay on the court for another 8 years.

Even if they do retire, we have two more on the liberal wing, one on the conservative wing and the current swing justice.


So, of those 6 members over 70, 4 are in the current "liberal" wing of the court, one is the moderately conservative swing vote, and one is conservative.


Barring strange circumstances, It would seem to me that the claim that a democratic president would drastically alter the court within 8 years time is a bit overstated.
2.4.2008 12:59pm
Dodsworth:
Waldensian

If you think that a zealously pro-war candidate will win this election, you are far more Quixotic than Ron Paul ever was. McCain is a guaranteed loser, big time. Romney would also lose but not by as much. Ron Paul is the only candidate who reflects the realiy that 70 percent of Americans oppose this war. Look for that oppositon to increase further as the surge continues to unravel.
2.4.2008 1:00pm
GhostofXmasPast (mail):
Tim-


"Conservative” means conservative except when the topic is jurisprudence, and then it means apolitical. Am I right about that?"


Yes, just ask Scalia and Thomas! I can't think of anyone more "apolitical"....
2.4.2008 1:26pm
TomHynes (mail):
What do the prediction markets say?

Intrade has McCain at 88% of winning nomination, 34% of winning presidency. If X is probability of winning election if nominated, 88% * X = 34%. X = 38%.

Intrade has Romney at 10% winning nomination, 3.5% of winning presidency. 10% * X = 3.5%. X = 35%.

Both Romney and McCain have about a 35% chance of beating the Democratic nominee.

If you disagree, figure out how to do the arbitrage and make a bet.
2.4.2008 1:44pm
Alec:
As a liberal, watching the Republican race has been quite a treat. A friend of mine predicted a war within the Republican party back in '04, whether or not Bush won the election, and how right he was! What I did not expect was an attempt to destroy Romney through coordination on the part of other candidates.
It is laughable, however, to claim that Romney is some principled conservative and a "foot soldier" of the Reagan "revolution." Ditto for McCain. To point at his governance of Massachusetts as a conservative positive is to ignore his liberalism in securing that position. As if by magic he became opposed to gay rights and abortion while pondering a presidential bid. By the time 2006 rolled around he was deeply unpopular in his own state. And he played with residency restrictions to even become eligible for the 2002 race.
Ironically, McCain is not the guarantee some Republicans appear to believe he is. On the issue increasingly important to social conservatives, same-sex marriage, he was ineffective as an advocate of a marriage amendment in his own conservative state, Arizona. He now supports making permanent the tax cuts he opposed, has been endorsed by Joe Lieberman, and in 1999 opposed the repeal of Roe v. Wade (a position he distanced himself from in 2007). Democrats have not forgotten Rove's flip flopper campaign in 2004, and are practically foaming at the mouth to take on any of these candidates. The country has shifted politically, and the wedge issues used by Republicans are increasingly irrelevant. America in 2008 is a long way from America in 1994 or even 2004.
Also, Justices Roberts and Alito were products of an unusually strong Republican senate, not merely a conservative president. That will not happen in the next few years. Even if by some miracle McCain became president, he will not have the votes in the senate to push through so-called "strict constructionists." Moreover, he has a reputation as being a difficult man to work with in the senate, a quality that will make his administration ineffective.
2.4.2008 1:50pm
Mike& (mail):
but rather people who want judges who will set aside their political conservatism and apply the law without regard to political considerations.


Just like Scalia did in Gonzales v. Raich?

Seriously, people are not buying into that argument anymore. Too many people have made a promise to "uphold the law," before behaving like conservative partisans.

For example, Roe v. Wade is very much part of "the law." Do you really think the authors of that op-ed would support a pro-Roe nominee? Or even a nominee who willingly would uphold it?

Of course, some would say that Roe v. Wade, despite its being a decades-old precedent, is not really "the law." But then you're just playing a game of "No true Scotsman." "Supreme Court justices should support the law." "Well, Roe v. Wade is the law." "Well, that's not true law."

In true Sophist fashion, "true law" is never defined more broadly than, "laws I like." Roe v. Wade, for example, is not true law. But Piece v. Society of Sisters is. Pointing out that both are substantive due process cases doesn't change the debate, since, well, abortion is bad where as home-schooling is good. QED, Piece is "true law," where as Roe is not.

Conservatives, like liberals, care deeply about results. It's sad that the "law not politics" meme has become so immersed in popular culture that this even needs explained.
2.4.2008 2:12pm
C is for... (www):
Alec:

While I can't say that I am also a liberal, I do think that your insights as to Senate alignment are important.

From one to another, I also think it's important that you spell your name with a c. Too few of us live that wonderful life.
2.4.2008 2:27pm
On this day in 1801:
I'm surprised this endorsement hasn't gotten more play. For conservative/libertarian lawyers, Calabresi's endorsement should carry more weight.

This isn't just some two-bit professor at Northwestern; this is the guy who helped marshal in the conservative revolution in the legal community. Where would legal education be today without the Federalist Society pushing back against the liberal establishment and con-law courses that teach only Wickard v. Filburn?
2.4.2008 2:55pm
NickM (mail) (www):
"Principled loss" and "Romney" don't fit well together. I'm not sure if the Mitt Romney who ran for Senate in 1994 would vote for the Mitt Romney of 2008.

Nick
2.4.2008 2:57pm
sef:
I have to say, the assertion that a democratic president getting to appoint a few new members would drastically change the composition of the court doesn't really make sense to me. Rather, the situation seems to be either a preservation of the status quo vs either preservation or continued conservative gains.

Except the unexpected does happen.

For example court stacking. If the Dems get 60 in the Senate dems could try to stack the court claiming the court should have six r &six d's. As I noted, Dems need 60 to do this and although getting 60 is improbable in 08 (but not impossible), it is quite possible following the 2010 elections, as more Rs than Ds are up for election in both cycles in the Senate.

More importantly, unforeseen medical issues arise. Ginsburg beat cancer. Justice Thomas, who by all accounts is the fittest member of the current Court, has now lived past the age, if I remember his bio right, that his father died. Stevens has undergone open heart. What is to say some health condition even a justice doesn't know about is lurking to arise. We have been rather lucky with the health of Justices in the last few decades, &we all hope the luck continues, but luck runs out.

I could go on &on, however, age alone is not the only factor why the next president will be able to shape the direction of the Court.
2.4.2008 3:21pm
just me:
Of all the reasons to question Romney, this one struck me as funny:


And he played with residency restrictions to even become eligible for the 2002 race.



And will Hillary "I've always been a Yankees fan" Clinton make much of that?
2.4.2008 3:32pm
gregh (mail):
The article doesn't even pretend to make an argument that McCain won't use McCain-Feingold, which he claims to be "transcendently" important to him, as his litmus test for Supreme Court nominees. Instead they just sort of hope it, for no reason. But they're very confident in their no-reason hope, so that's enough to elect a President with, right?
2.4.2008 4:18pm
Mark Field (mail):

For example court stacking. If the Dems get 60 in the Senate dems could try to stack the court claiming the court should have six r &six d's.


Sure, and they might expand the Court to 15, too (one additional justice for each one over 70). Been there, done that; deja vu just ain't what it used to be.
2.4.2008 4:31pm
CJColucci:
Am I right about that?

No.
2.4.2008 5:55pm
sef:
Sure, and they might expand the Court to 15, too (one additional justice for each one over 70). Been there, done that; deja vu just ain't what it used to be.

True enough, it was last floated, if memory holds, in 1993 as a way of pushing back against Rehnquist court, and before that by just about every other President going back to at least Andrew Jackson
2.4.2008 6:03pm
theophilus (mail) (www):

One last thing. If the Democrats win the White House and the House, but only have, say, 55 or so seats in the Senate... Would any conservative be offended if the majority party used their majority to change the rules and prevent filibustering of judicial nominees?


Not possible... you could still filibuster as long as there are the 60 required votes for closing debate. You can't change the Senate rules, so that number is fixed. Additionally, I'm under the understanding that even if you have the 60 votes, a sneaky individual could just start talking, never yield the floor for a motion to end debate, and still filibuster the nomination.
2.4.2008 6:14pm
Brett Bellmore:

You can't change the Senate rules, so that number is fixed.


That would certainly come to a surprise to anyone aware of the history of how both Senate rules, and the number required for cloture, has changed over the years.

Of course you can change Senate rules. Doesn't even take 60 votes to do it, if the leadership is willing to cut a few corners.
2.4.2008 7:17pm
theophilus (mail) (www):
Apparently, I failed 8th grade civics.

Consider it a full retraction.
2.4.2008 7:50pm
Oren:
Of course you can change Senate rules. Doesn't even take 60 votes to do it, if the leadership is willing to cut a few corners.
I can only imagine the pandemonium that would result if the majority by less than 60 attempted this stunt. It would be a full-on cluster****.

Not incidentally, I wonder what the Sergeant-at-Arms orders are with respect to these disputes (i.e, would he throw out minority party members that obstructed the business of the Senate is so ordered by the Chair)? Shit, now I want to see it just for the spectacle!
2.4.2008 9:42pm
Tim Dowling (mail):
"Am I right about that?

No."

Please enlighten me.
2.4.2008 9:58pm