The McCain Court: Appointing Conservative Judges Would Undermine the Maverick's Legislative Legacy

Article excerpt

THE PROSPECT of overturning Roe v. Wade may be only incentive powerful enough to turn a disillusioned conservative into a motivated McCain voter this November. After the betrayals of the Bush era, many on the Right still point to the ascendance of John Roberts and Samuel Alito to the Supreme Court and proclaim, "It was worth it." Campaigning across the country, McCain promises conservative audiences, "We're going to have justices like Roberts and Alito." And Sen. John Cornyn told the New York Times that judges "are the one issue that cuts across all aspects of the Republican coalition," saying that in the run up to November, "I will encourage him to make it a prominent part of his pitch."

But will the Arizonan make good and usher in a conservative majority on the Court? Unlikely. Republicans hoping to rally their dispirited base in 2008 can find little evidence that John McCain is interested in effecting a judicial counter-revolution. Though there will probably be multiple vacancies in the Supreme Court in the next presidential term--John Paul Stevens turns 88 this April; Ruth Bader Ginsburg is 74; Anthony Kennedy is 71-- McCain has never made the judiciary a central theme of his campaign.

Given the chance to join conservatives in disarming Democratic opposition to conservative judges, McCain compromised. Lacking incentives to appoint strict constructionists, his attitude toward judicial conservatives runs between indifference and hostility. And while McCain dutifully praises Roberts and Alito in public, he sometimes questions their rulings--particularly when they threaten to overturn his legislative legacy.

Reacting to the disappointing appointees of Reagan and Bush I, the Right adopted a "No More Souters" mantra. By insisting that judges need a verifiable record of strict constitutionalism in order to be appointed, conservative activists helped scuttle the abysmal Harriet Miers nomination. It is difficult to see how, after launching such a full-throated mutiny against her, they could accept McCain, whose answer to the impasse over Bush's judicial nominees was to elevate himself as a moderate powerbroker.

In 2005, when Democrats threatened to filibuster the president's appointees, conservatives countered that the Constitution requires only a majority vote for confirmation--not the 60 votes needed to invoke cloture. They argued that the filibuster itself represented an unconstitutional addition to the simple "advise and consent" role envisioned in our founding documents. Grassroots conservatives urged Republicans to exercise the "nuclear option" whereby the presiding officer--in this case Vice President Cheney--could invoke a little used procedural device and proceed to an up-or-down vote with only majority consent.

Rather than contending with the constitutional question, McCain joined Democrat Ben Nelson to form the Gang of 14. The seven participating Democrats agreed that for the duration of the 109th Congress they would no longer vote with their party to filibuster judicial nominees except in "extraordinary circumstances"; circumstances"; in turn the seven Republicans would refuse to vote with then Majority Leader Bill Frist on the "nuclear option." For hardcore conservatives, the Gang of 14, though expedient to confirm Roberts and Alito, placed principle second to bipartisan accommodation. Even today, McCain admits that his deal with Democrats ensured that several of Bush's appointments to federal appeals courts were permanently sidelined.

Judicial nominations were one of Bush's reliably conservative selling points. But McCain is not similarly beholden to the traditional Republican base. Bush could attribute his 2004 victory to evangelical Christians, and he received support from movement conservatives throughout his presidency. This will not be McCain's story. When he called evangelical leaders "agents of intolerance," he became a media darling. Over the past seven years, McCain's leading critics have been movement conservatives, and he won the nomination of his party against the bitter opposition of talk radio. …