Conciliatory Conservative? McCain and the Issue of Judicial Selection

Article excerpt

Byline: Carl Tobias, SPECIAL TO THE WASHINGTON TIMES

On Tuesday, Republicans in Ohio, Rhode Island, Texas and Vermont voted in the presidential primary. One essential constitutional responsibility that presidents discharge is to "nominate, and by and with the advice and consent of the Senate, appoint" federal judges, including most importantly Supreme Court Justices. Judicial selection has taken on peculiar salience for the next chief executive because the 44th president will probably name multiple justices to the sharply divided Supreme Court. Therefore, it is crucial that voters understand the positions which Republican candidates have taken on appointments.

Judicial selection has figured prominently in Republican Party strategy for federal elections since 2000, mainly because the GOP leadership thinks the issue appeals to its base. The three Republican presidential candidates remaining in the race at the beginning of the week differ minimally in their views on this process. They have recited the Republican litany regarding appointments demanded of every serious contender.

Because John McCain has secured the Republican nomination (and endorsement from President Bush), his judicial selection record warrants more evaluation. Mr. McCain has invoked the conservative Republican Party mantras about the process. For instance, the candidate has stated that "one of the greatest threats to our liberty [and] our freedoms is willful judges who legislate from the bench." He has praised President Bush for naming justices "who strictly interpret the Constitution." Mr. McCain has concomitantly vowed to select judges who interpret the Constitution and laws and do not "impose their own view as to the best policy choices" or become "liberal judicial activists."

Mr. McCain has also taken the mandatory pledge to nominate Supreme Court justices who closely resemble Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas. For instance, the candidate observed that he had "strongly supported John Roberts and Samuel Alito for the Supreme Court," saying they had demonstrated fidelity to the Constitution. And "that is why I would seek men and women like them as judicial appointees," Mr. McCain added.

Numerous conservatives attack Mr. McCain for helping fashion the "Gang of 14." This collection of senators' 2005 effort stopped the Republican majority from setting off the "nuclear option" that would have prevented filibusters of judicial nominees. …