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McCain & Judicial Nominations:

Most discussion and debate over Sen. John McCain's record on judicial nominations has focused on his role in the "Gang of 14." See, for example, this defense of his record by Adam White and Kevin White, and this response by Andrew McCarthy and Mark Levin at NRO.

For those (like myself) who follow these issues closely, John Fund presents an interesting McCain tidbit in a column discussing how McCain could mend fences with conservatives:

Then there is the issue of judicial nominations, a top priority with conservatives. Nothing would improve Mr. McCain's standing with conservatives more than a forthright restatement of his previously stated view that "one of our greatest problems in America today is justices that legislate from the bench." Mr. McCain bruised his standing with conservatives on the issue when in 2005 he became a key player in the so-called gang of 14, which derailed an effort to end Democratic filibusters of Bush judicial nominees. More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because "he wore his conservatism on his sleeve."
So if Justice Alito was too openly conservative for McCain, what sort of justice would he appoint? Who, if not Alito, would qualify as a nominee like John Roberts?

UPDATE: NRO's Byron York got the chance to ask McCain about the quote. He reports:

I got a moment with John McCain, after an airport rally here in Orlando, to ask him about a report today by John Fund quoting some unnamed conservatives quoting McCain to the effect that, in Fund's words, "[McCain] would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'"

"Let me just look you in the eye," McCain told me. "I've said a thousand times on this campaign trail, I've said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I've said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked."

"I don't get it," McCain continued. "I have a clear record of that. All I can tell you is my record is clear: I've supported these guys. I went to the floor of the Senate and spoke in favor of them. It's in the record, saying, 'You've got to confirm these people.'"

I asked whether McCain had ever drawn any distinction between Roberts and Alito. "No, no, of course not," McCain said.

I asked about the "wore his conservatism on his sleeve" line. "I'm proud of people who wear their conservatism on their sleeves, because they have to have a clear record of strict adherence to the Constitution," McCain told me. "Remember, in all my remarks, I've said, look, we're not going to take somebody's word for it. You have to have a clear record of adherence to the Constitution, a strict interpretation of the Constitution. I have said that time after time after time."

"And maybe as an aside, why would I say anything derogatory about somebody like that? What would be the point, after working so hard to get not only those two confirmed, but the Gang of 14 ­ which I know is controversial ­ but our record of getting those judges confirmed that the president nominated, I'm still proud of."

This would seem to be a complete disavowal of the substance of John Fund's report. It is also consistent with other remarks McCain has made, as Ramesh Ponnuru notes here [and a commenter notes below].

One very minor caveat: In his exchange with York McCain further claims that he "continued to fight for" confirmation of the Bush nominees who the Gang of 14 did not agree to support. This statement is harder to credit. It has been widely reported that Senator McCain opposed the confirmation of one nominee, Michael Haynes, to the U.S. Court of Appeals for the Fourth Circuit. McCain objected to Haynes' role in the development of military policies on enemy combatants and interrogation methods. This is wholly understandable given McCain's strong position on the subject, and I doubt it would dissuade anyone who is otherwise considering throwing their support behind McCain.

Meanwhile, John Fund is reportedly standing by his story. SECOND UPDATE: More from Professor Bainbridge here.

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Levy on McCain and Judges:

The WSJ's Collin Levy weighs in on Senator John McCain and the issue of judicial nominations.

While Mr. McCain has listed the names of justices he admires on the trail before, he has generally steered clear of the courts as a major topic.

In states like South Carolina, he preferred to invoke his pro-life voting record -- and the tactic seems to have paid off. He won the state with around 27% support from evangelical voters, according to CNN exit polling. In Florida, he won endorsements from a coalition of pro-life and value voters, and campaigned hard in evangelical strongholds near the Georgia and Alabama borders.

The problem for Sen. McCain is that the justice train runs straight through the middle of McCain-Feingold, a sore point for many judicial conservatives. The landmark campaign finance law, officially known as Bipartisan Campaign Reform Act of 2002, is one of the Arizona senator's proudest achievements, one he would presumably seek to protect if it was within his power. But the namesake law, which aimed to take the money out of politics, has created restrictions on political speech that most conservatives -- and conservative judges -- find unconstitutional. . . .

[This is] a salient question for "values" voters, not because of McCain-Feingold itself, but because of its potential role as a litmus test. Few "strict constructionist" judges would vote to uphold it, so evangelicals who may like Mr. McCain's legislative record on abortion worry nonetheless that his attachment to campaign finance regulation may get in the way of nominating properly conservative judges.

But Ms. Levy is not simply piling on Senator McCain. She notes there are questions about Governor Mitt Romney's record on judges too.

Aside from his mid-term conversion on the abortion issue, he faces his own little-explored set of obstacles stemming from his judicial record in Massachusetts. His appointments as governor, for instance, have yet to get an airing. In 2005, the Boston Globe noted that Mr. Romney had a habit of passing over conservative lawyers for his appointments of judges or clerk magistrates. Of the 36 people he elevated, more than half of them were either Democrats or independents with a habit of donating to Democratic candidates.

Asked about those numbers at the time, Mr. Romney said: "People on both sides of the aisle want to put the bad guys away." Fair enough. The criteria for lower court judges can be different than the higher courts, where Mr. Romney has said he would be committed to strict constructionists. But Mr. Romney's tendency to swap principles when politically convenient will leave some judicial conservatives unreassured.

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Novak on McCain & Judicial Nominations:

Today's Robert Novak column supports John Fund's claim that Sen. McCain has made comments suggesting he would be unlikely to nominate someone like Samuel Alito to the Supreme Court. Specifically, Novak reports the following:

Fund wrote that McCain "has told conservatives he would be happy to appoint the likes of Chief Justice Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito because 'he wore his conservatism on his sleeve.' " In a conference call with bloggers that day, McCain said, "I don't recall a conversation where I would have said that." He was "astonished" by the Alito quote, he said, and he repeatedly says at town meetings, "We're going to have justices like Roberts and Alito."

I found what McCain could not remember: a private, informal chat with conservative Republican lawyers shortly after he announced his candidacy in April 2007. I talked to two lawyers who were present whom I have known for years and who have never misled me. One is neutral in the presidential race, and the other recently endorsed Mitt Romney. Both said they were not Fund's source, and neither knew I was talking to the other. They gave me nearly identical accounts, as follows:

"Wouldn't it be great if you get a chance to name somebody like Roberts and Alito?" one lawyer commented. McCain replied, "Well, certainly Roberts." Jaws were described as dropping. My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative.

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John McCain and the Judiciary:

Much controversy has centered recently around John McCain's possible judicial nominees should he become president. In my view, a President McCain would face a difficult tradeoff between the goal of appointing conservative jurists and the goal of saving the McCain-Feingold law from invalidation by the Court.

John McCain may well be sincere in claiming that he wants to appoint conservative justices. However, he is undoubtedly even more sincere in his support of the McCain-Feingold campaign finance law, his proudest achievement as a legislator. The narrow conservative majority on the Supreme Court is not fond of McCain-Feingold and has already significantly narrowed its scope in the Wisconsin Right to Life case. The five conservatives most likely believe that McCain-Feingold is unconstitutional; that applies also to swing voter Anthony Kennedy, who voted to strike down most of McCain-Feingold in McConnell v. FEC, the 2003 decision that narrowly upheld the law by a 5-4 margin (here is Kennedy's strong dissent in that case).

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.

I honestly don't know whether McCain - should he be elected - would put his desire to uphold McCain-Feingold above his campaign promises to appoint conservative justices. However, the possibility that he might appoint an analogue to Justice Souter or Harriet Miers in order to save McCain-Feingold is a very real one. This concern is only slightly assuaged by recent endorsements of McCain by conservative legal luminaries such as Ted Olson and Miguel Estrada. Perhaps they know something about McCain's plans that I don't. However, it will take a lot more evidence to convince me that McCain is genuinely willing to set his commitment to McCain-Feingold aside in making Supreme Court appointments.

Supreme Court appointments are not the only issue in the presidential election and probably not the most important. However, conservatives and libertarians who care about legal issues should be aware of the possibility that a President McCain might end up appointing justices likely to vote against their positions on most major constitutional issues before the Court. The above is not an endorsement of Mitt Romney, who has his own shortcomings. Nor is it a comprehensive rejection of McCain, whose positions on some issues I very much agree with. It does, however, flag an important concern about McCain's potential judicial appointments.

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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."

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McCain & Romney On Judges:

The Federalist Society has posted statements by the two leading GOP candidates -- John McCain and Mitt Romney -- on judicial philosophy as part of their "Originally Speaking" on-line debate series here. According to the site, they will add contributions by the other remaining GOP candidates and the Democratic contenders as they are received.

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Assessing McCain:

In two insightful posts, University of San Diego law professor Michael Rappaport argues that John McCain is very bad on a wide range of policy issues and that pro-limited government conservatives might well be better off with a Democratic candidate winning this fall than with a President McCain.

I agree with most of the points Michael makes in his first post. On two of the issues he raises (immigration and torture/interrogation) my position is much closer to McCain's than Michael's is. I also give McCain great credit for opposing Bush's 2003 Medicare prescription drug plan - the biggest of all the Bush Administration's domestic policy boondoggles. He was one of only nine GOP senators to buck the administration on that issue.

I therefore give McCain higher grades on policy than Michael does. Nonetheless, the overall picture Michael paints is far from a positive one. McCain seems less of a big government conservative than Bush has turned out to be. But the difference is more one of degree than kind. On judges, I agree with Michael's suspicions that McCain might appoint moderate to liberal "stealth" nominees to the Supreme Court in order to preserve his beloved McCain-Feingold campaign finance restrictions. I'm not certain about that, but it's a real possibility.

I am much less convinced by Michael's argument that the cause of limited government will be better off in the long run if the Democrats win. Michael argues that, just as Jimmy Carter's failures in office paved the way for Ronald Reagan, the shortcomings of a Hillary Clinton or Obama administration will pave the way for a Reaganite resurgence. By contrast, if McCain wins, the Republicans will end up adopting his pro-government agenda if he is politically successful or will be blamed for his shortcomings if he fails in office.

Maybe Michael is right. But Carter failed to win reelection in large part because he was the victim of circumstances outside his control: a severe recession and the emergence of foreign policy crises in Iran and Afghanistan. Had he been luckier and a more skillful politician, he might not have lost in 1980. In all three cases, Carter probably made a bad situation worse. But his bumbling would have been much less noticeable to the electorate if he had been blessed with better circumstances. By contrast, the next president will probably enjoy a favorable economy two or three years into his term (once the current pseudo-recession ends). And we don't yet know how international events will play out. When you consider that Obama and Hillary are both more skillful politicians than Carter, and that Obama at least is highly charismatic, it's quite possible that a Democratic president will enjoy considerable political success. Unlike Michael, I am not convinced that the Democrats will repeat the political mistakes of Bill Clinton's first two years in office. They (especially Hillary) might well have learned from those errors and be more effective in enacting their agenda this time around.

The Dems might turn out to be a political success even if they adopt policies that cause great longterm harm (as I think is quite likely). The harm may not yet be apparent to voters in 2012 or even 2016. Even when it does become evident, rationally ignorant voters might lack the knowledge necessary to connect it to the big government policies enacted by the Democrats years earlier.

Finally, even aside from McCain's strengths and weaknesses as an individual, there are great benefits to divided government. As I argue here and here, it's one of the best ways of limiting the growth of government power. Since the Democrats are almost certain to retain control of both houses of Congress and Mitt Romney has almost no chance of winning the general election, John McCain may be the only hope for maintaining divided government in 2008.

Maybe Michael is right to suppose that things will go better in the long run if the Democrats win than if McCain becomes president. But I have even more doubts about that scenario than I do about McCain himself. McCain is very far from ideal. But his election might well be a lesser evil than the available alternatives.

UPDATE: I have deliberately avoided discussion of the war in this post. If you support a quick withdrawal from Iraq, Obama is probably your best bet, followed by Hillary Clinton (though neither is likely to withdraw quite as fast as many liberals want). My own view on Iraq is somewhat similar to McCain's, who gets credit in my book for favoring a "surge" long before Bush came around. However, I don't really have anything to say about the issue that hasn't already been said by others with greater expertise.

UPDATE #2: Michael Rappaport responds to this post here. I lack the time to respond in detail and in any event our views are not that far apart. However, I will briefly respond to Michael's claim that the usual benefits of divided government won't happen under McCain because "McCain enjoys his maverick, bipartisan reputation and will only be too happy to sign many of the Democrats’ bills." It is true that McCain probably would sign some Democratic bills that Michael and I would both find objectionable. However, he would be unlikely to cave in to the Democrats on a wide range of important issues, including spending and foreign policy. The key comparison is not between divided government and some ideal state, but between divided government with McCain and united government with the Democrats controlling the presidency and both houses of Congress. Given the Democrats' likely agenda, the latter scenario could well lead to a major expansion of government that will be difficult to undo even if the Republicans return to power in 2012 or 2016.

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The Downside of Mavericks:

In view of all the praise John McCain has gotten for being a "maverick," I can't resist quoting the Iceman's critique of a similar maverick naval aviator:

Maverick [justifying violating the rules during a training flight]: Hard deck my ass. We nailed that son of a bitch. [High fives Goose].

Iceman: You two really are cowboys.

Maverick: What's your problem, Kazanski?

Iceman: You're everyone's problem. That's because every time you go up in the air, you're unsafe. I don't like you because you're dangerous.

Maverick: That's right! Ice... man. I am dangerous.

UPDATE: Commenters point to this clever video analogizing McCain to Maverick and Romney to the Iceman. All I can say is that if Romney really were as impressive as Iceman, I'd have a much different view of the election.

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An Overlooked Potential Benefit of Conservative Distrust for McCain:

John McCain will now almost certainly become the Republican nominee for president. Therefore, we will be hearing more about the longstanding issue of conservative distrust towards him. I think that that distrust has an important upside that has been overlooked: it will make it more difficult for McCain to promote major new expansions of government should he become president.

Many conservatives either supported or at least refused to aggressively oppose the Bush Administration's massive expansion of domestic spending, most notably his prescription drug and education plans. They did so in part because conservatives for a long time felt a sense of affinity with Bush and trusted him. There is very little such trust between conservatives and McCain. It will therefore be much more difficult for him to win conservative support for comparable boondoggles.

That, combined with the restraining influence of divided government, will make it much harder for McCain to enact major new statist policies than it was for Bush during the years when he had a Republican majority in Congress. McCain might even end up emphasizing his anti-spending instincts in order to shore up conservative support.

I don't want to be a pollyanna here. If elected, McCain will almost certainly succeed in enacting some policies that pro-limited government conservatives (to say nothing of libertarians) will find highly objectionable. Some conservative Republicans will be tempted to support McCain's initiatives simply out of party loyalty. That said, I think that the combined impact of conservative distrust and divided government can greatly reduce the potential harm caused by a McCain Administration. It might even result in some positive benefits.

Ronald Reagan once urged us to "trust but verify." When it comes to McCain, a "distrust and verify" approach might be even better.

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