pageok
pageok
pageok
McCain, Conservatives & Judges:

Former Rep. Bob Barr, running for president as a Libertarian, argues that conservatives who care about judicial nominations should not support John McCain for President because "his jurisprudence is likely to be anything but conservative." According to Barr:

The idea of a "living Constitution" long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing "judicial activism" and proclaiming their fidelity to "original intent." However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired. . . .

even if a President McCain were to influence the court, it would not likely be in a genuinely conservative direction. His jurisprudence is not conservative.

For instance, most conservatives believe that the First Amendment safeguards political speech. Mr. McCain does not. . . .

In his May 2008 speech on judges at Wake Forest University, Mr. McCain talked about the importance of "the constitutional restraint on power," but in practice he recognizes no limits on government or executive-branch authority. In fact, if Mr. McCain nominated someone in his own image, the appointee would disagree with not only the doctrine of enumerated powers, which limits the federal government to only those tasks explicitly authorized by the Constitution, but also the Constitution's system of checks and balances, and even its explicit grant of the law-making power to Congress. . . .

It is important to choose judicial nominees carefully. But that is no reason for conservatives to vote for Mr. McCain. He has demonstrated no more interest in "conserving" the Constitution, and its principles of limited government and individual liberty, than has Mr. Obama.

This is a smart tack for Barr to take. Many limited government conservatives are quite disgusted by Republican profligacy and incompetence but nonetheless fear having a President Obama nominate two or more justices to the Supreme Court. Challenging McCain's credentials as a "judicial conservative" is one way to discourage conservative support and diminish conservative fervor for his campaign.

Judicial nominations is one of the few issues with the potential to keep many limited government conservatives in McCain's camp. But Bruce Bartlett is skeptical that "at the end of the day . . . the makeup of the Supreme Court will really be all that different under McCain than under Obama." According to Bartlett:

With Democrats virtually guaranteed to control the Senate by a comfortable margin in the next Congress, McCain would have enormous difficulty getting anyone nearly as conservative as Roberts or Alito onto the Supreme Court.

While McCain could theoretically just keep nominating conservatives until the Senate is finally forced to accept one of them, this approach is unlikely. There isn't an unlimited supply of conservative jurists with the requisite experience to be a viable Supreme Court appointee. And if the confirmation process remains as contentious as it has been in recent years, many of those who are qualified will pass on the opportunity to have their lives torn apart.

More likely, McCain would be forced to appoint moderate justices just to get confirmation. . . .

McCain could help himself by explaining what his strategy will be to find dependable conservatives and get them confirmed. However, he has already repudiated the best hope Republicans had for circumventing Democratic opposition: the so-called nuclear option, which would have forced the Senate to give all federal court nominees an up-or-down vote. McCain basically destroyed any hope of getting a parliamentary ruling on this scheme by putting together the Gang of 14, a bipartisan group of senators that agreed to allow all qualified nominees to have a vote before the full Senate.

Conservatives have to ask themselves whether the man who torpedoed the nuclear option is really likely to fight to the bitter end for the kinds of justices they want to see on the court.

Bartlett suggests that Obama will also be constrained in selecting judicial nominees, but I think he overstates his case here. The likelihood of a GOP filibuster of an Obama Supreme Court nominee is quite small (as it should be). Still, if liberal justices are the next to retire, a President Obama would have difficulty moving the Court much to the left.

Note: Barr's op-ed makes the common mistake of conflating the theory of a "unitary executive" with a theory of robust or unconstrained executive power. The theory of the "unitary executive" concerns the nature of the President's control over the executive branch, but has relatively little to say about the scope of executive authority or the degree to which the executive may act unilaterally.

Related Posts (on one page):

  1. The "Unitary Executive" and the Scope of Executive Power:
  2. McCain, Conservatives & Judges:
NickM (mail) (www):
A qualified conservative need not presently be a jurist. A President McCain could also pick, for example, a sitting U.S. Senator (deny him a vote or vote him down, and kiss unanimous consent requests goodbye for years).

Nick
7.17.2008 10:40pm
taney71:
Scalia is up in age. You never know whats going to happen.
7.17.2008 10:44pm
Cornellian (mail):
I think I previously expressed some skepticism about the idea of presidential candidates publishing lists of the people they'd appoint to the Supreme Court if elected, but I am curious to hear who Bob Barr would propose.
7.17.2008 10:46pm
Glenn W. Bowen (mail):
Bob "Dead Eye" Barr, who "accidentally" discharged a pistol in a crowded room a few years ago?
7.17.2008 10:52pm
jgshapiro (mail):
It would be helpful if Barr were to name some judges that he likes, so it is clear who he would nominate if given the chance. Instead, he just speaks in platitudes.

As for Bartlett, does he really think there is no difference between Sonia Sotomayor or Ken Salazar, on the one hand, and Mike McConnell or Lindsay Graham on the other?
7.17.2008 10:53pm
wm13:
Barr is somewhat off base, but Bartlett is just crazy. Let me see if I have this straight. Conservatives despise Bush, and they also despise McCain because he disagrees with Bush on taxes and stem cells. Umm, okay. I guess a candidate would be unwise to spend much time trying to please Bartlett-style conservatives.

Also, McCain is our enemy because he didn't help eliminate the filibuster back when Republicans were in the majority, and failure to eliminate the filibuster is a serious problem now that Republicans are in the minority. Huh? It's sort of like Bartlett doesn't expect the reader to remember the beginning of each sentence all the way to the end.
7.17.2008 11:01pm
EH (mail):
However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired. . . .

This is a very important point that does not get aired often. The only difference between the two major parties are who their victims are.
7.17.2008 11:17pm
AKD:

. . . the makeup of the Supreme Court will really be all that different under McCain than under Obama."


Is there supposed to be a "will" and "?" here?
7.17.2008 11:50pm
AKD:
Oops, read that backwards. Nevermind.
7.17.2008 11:51pm
Soronel Haetir (mail):
One thought I had on this if McCain were actually to win and Stevens were the next justice to retire, depending on the timing would getting another justice on the court really be a pressing issue?

I could see McCain getting as much milage out of a court that splits 4-4 against and 5-3 for as he would with getting even another Kennedy onto the bench.

I don't care to look up the quote from the Federalist Papers but recall the general appointments argument that the Senate is never guaranteed to get a canidate that pleases them.
7.18.2008 12:27am
Dave N (mail):
Of course it doesn't matter who is elected President with respect to judicial nominees. Why, I heard that John Roberts and Sam Alito were also John Kerry's personal picks.
7.18.2008 12:59am
BT:
"Nor is it obvious that Barack Obama would attempt to pack the court with left-wing ideologues. He shocked some of his supporters by endorsing the ruling that the Second Amendment protects an individual right to own firearms, ..."

Even Bob Barr is drinking the B.O. flavorade. If he can't see this for the easy pandering it is, then why would I trust Barr's judgement on anything? B.O. was in the Illinois Senate for 8 years, not once do I recall, nor is there any record of, him going to bat for my 2A rights. Also he has come out in support of Chicago's ban gun as well. He also was for DC's ban before he was aginst it.
7.18.2008 6:53am
Jim Miller (mail) (www):
Jonathan Adler - You say Bob Barr is "smart" to say these things. By that, I take it to mean that you think they are effective politically, that the statements may win votes for him or take votes from McCain.

Perhaps, though I have my doubts. But there is a more important question: Is what Barr says true? Does even Barr believe that McCain would not appoint conservative judges, or that Obama would be constrained by a Democratic congress?
7.18.2008 8:52am
PersonFromPorlock:
NickM:

A qualified conservative need not presently be a jurist.

Or even a lawyer, for that matter. Can't a case be made for non-lawyers as Justices, just to keep the law from becoming too esoteric?
7.18.2008 9:47am
SteveW:
McCain has been bragging to Clinton supporters that he supported the nominations of Ginsberg and Breyer. He's just another politician who says whatever people around him want to hear.
7.18.2008 10:13am
merevaudevillian:
McCain also voted for Bork and expressed skepticism about Souter. One's role in voting to confirm nominees might be different than one's vision in appointing them. Although for Senator Obama, they seem to be one in the same.
7.18.2008 11:21am
njones (mail):
This line of reasoning doesn't make much sense to me.

Given a Democratic Senate and a President Obama, you would get liberal judges.

Given a Democratic Senate and a President McCain, you would get moderate judges.

I would prefer conservative judges but, if I had to choose between moderate and liberal judges, I'll go for the former. (Why would any conservative prefer liberal judges to moderate judges???)

I'm still (reluctantly) voting for McCain.
7.18.2008 11:44am
Bob from Ohio (mail):
John Roberts would have been approved no matter the make up of the Senate. His qualifications were so outstanding and his appearance so moderate that no way he would lose. Find a similar type and you are good to go.

Avoid any goofy facial hair in particular.

There is always a Souter risk of course but it is frankly crazy to think that Obama's picks would not be several magnitudes more liberal than anyone McCain would ever consider.
7.18.2008 12:24pm
PLR:
The idea of a "living Constitution" long has been popular on the political left.

So I take it Barr (and half of the Fourth Circuit, apparently) prefers that other kind of Constitution?
7.18.2008 12:48pm
David M. Nieporent (www):
The comments about the "nuclear option" just underscore how silly it is to slam McCain and other Republican members of the Gang of 14 for participating in the Gang of 14. Now we have a Democratic Senate. (We also likely have a Democratic president.) What would the nuclear option do in such a situation?
7.18.2008 1:47pm
David M. Nieporent (www):
McCain has been bragging to Clinton supporters that he supported the nominations of Ginsberg and Breyer. He's just another politician who says whatever people around him want to hear.
Isn't the charge that a person "says whatever people around him want to hear" usually an accusation that a person is lying to one group of people? But McCain did support Ginsberg and Breyer -- as did virtually all Republicans, who aren't nearly as ideological as liberals are on the subject -- so the statement is true.
7.18.2008 1:52pm
David M. Nieporent (www):
A qualified conservative need not presently be a jurist.

Or even a lawyer, for that matter. Can't a case be made for non-lawyers as Justices, just to keep the law from becoming too esoteric?
A case can be made for just about anything, but I don't think it would be a very good case. The law is sometimes needlessly complicated, yes -- but often it's necessarily complicated. Particularly at the Supreme Court level; easy cases don't make it there too often. (Except when overturning Reinhardt.)
7.18.2008 1:55pm
David M. Nieporent (www):
The idea of a "living Constitution" long has been popular on the political left.

So I take it Barr (and half of the Fourth Circuit, apparently) prefers that other kind of Constitution?
Yes. As Scalia says, the enduring kind. The kind that doesn't change with the winds of popular opinion or the whims of people in robes.
7.18.2008 1:56pm
Smokey:
The idea of a "living Constitution" long has been popular on the political left.
Justice Scalia said, "The Constitution is not a living organism. It is a legal document. And like all legal documents it doesn't change."

If you think your 1992 mortgage interest rate is too high, just tell the lender that the contract is a "living organism," which should reflect 2008 interest rates. That's how the Left looks at the Constitution. For a better perspective, pretend you're the lender.
7.18.2008 5:08pm
PLR:
As Scalia says, the enduring kind. The kind that doesn't change with the winds of popular opinion or the whims of people in robes.
Like hell it doesn't, Tony.

And I didn't know that "enduring" was the opposite of "living." Maybe you meant "entombed."
7.18.2008 6:25pm
Oren:
Smokey, this is why I proposed a Constitutional Amendment to insert into Art I:

To provide and maintain an Air Force.

Until then, any money appropriated for the USAF is done with no authority under the Constitution.
7.19.2008 2:24pm
Ryan Waxx (mail):
Bob Barr has a problem with marketing his product.

He wants to promote himself to people seeking more conservative justices, yet the plan of action (split the vote so that NEITHER Barr nor McCain get elected) does not achieve the goal, either.

Certainly, there will be conservatives who do not vote for McCain out of principle or because they are offended at his positions. But here Barr is reaching out instead to people who presumably want to accomplish something, and reccomending to them that they act now to make certain they do not get it.

I suppose he has to do this, but it seems like a waste of his and his audience's time.
7.21.2008 10:12am