The Candidates
Federalist Society co-founder Steven Calabresi and Northwestern University Law School professor John O. McGinnis explain why John McCain is the right choice for voters for which Supreme Court appointment are crucial in a Op-Ed for today’s Wall Street Journal:
The conservative movement has made enormous gains over the past three decades in restoring constitutional government. The Roberts Supreme Court shows every sign of building on these gains.
Yet 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.
Accordingly, for judicial conservatives electability must be a paramount consideration. By all accounts, Mr. McCain is more electable than Mr. Romney. He runs ahead or even with Hillary Clinton and Barack Obama in the national polls, and actually leads the Democratic candidates in key swing states like Wisconsin . Mr. Romney trails well behind both Democratic candidates by double digits. The fundamental dynamic of this race points in Mr. McCain’s way as well. He appeals to independents, while Mr. Romney’s support is largely confined to Republicans.
With many more Republican senators up for re-election than Democrats, the nomination of Mr. Romney could easily lead to a Goldwater-like debacle, in which the GOP loses not only the White House but also its ability in practice to filibuster in the Senate. Thus, even if we believed that Mr. Romney’s judicial appointments were likely to be better than Mr. McCain’s — and we are not persuaded of that — we would find ourselves hard-pressed to support his candidacy, given that he is so much less likely to make any appointments at all.
In fact, there is no reason to believe that Mr. McCain will not make excellent appointments to the court. On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His pro-life record also provides a surety that he will not appoint judicial activists.
We recognize that there are two plausible sources of disquiet. Mr. McCain is perhaps the foremost champion of campaign-finance regulation, regulation that is hard to square with the First Amendment. Still, a President McCain would inevitably have a broader focus. Securing the party’s base of judicial conservatives is a necessary formula for governance, as President Bush himself showed when he swiftly dropped the ill-conceived nomination of Harriet Miers.
Perhaps more important, because of the success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area. The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party.
Others are concerned that Mr. McCain was a member of the “Gang of 14,” opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain’s views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owens, Janice Rogers Brown and Bill Pryor, three of President George W. Bush’s best judicial appointees to the lower federal courts.
Conservative complaints about Mr. McCain’s role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.
February 4th, 2008 at 4:19 pm
zzzzz
February 4th, 2008 at 4:21 pm
This is the highlight of the piece:
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.
Is my McCain Derangement Syndrome breaking? Not yet. But this is now the ONLY reason I will consider voting for McCain. If he can made the argument half as well as Messrs. Calabresi and McGinnis, I may reconsider. But he has to address this corraborated story about Alito. There seems to be too much smoke there not to be a fire.
Thanks for this post, Kavon.
February 4th, 2008 at 4:25 pm
Kavon, have you officially endorsed McCain?
February 4th, 2008 at 4:25 pm
If McCain is the nominee, his liberal, independent and moderate buddies will not vote him in.
ZZZZZZZZZZZZZZZZZZZZZZZ
February 4th, 2008 at 4:29 pm
ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ
February 4th, 2008 at 4:30 pm
Why exactly does Calabresi think it suitable to compare McCain’s relationship with the base to Bush’s relationship with the base?
Bush is far more beholden to the base as his support. McCain’s base is not the Republican party, but fawning media who love seeing him work across the isle.
McCain is a leader in certain respects…all liberal bills, McCain-Kennedy being an example. I just can’t brush aside frontal assaults on the 1st amendment. That’s one of McCain’s legacies, something he stood for. To assume that the same anti-free-speech mentality wouldn’t influence his judicial nominees is naive.
And McCain doesn’t get pushed around. He fought against real conservatives tooth and nail on immigration even though he knew it was killing his electoral chances. There’s no reason to suspect that he’d back away from a controversial pick like Miers. McCain fights for what he wants, and the image of him as the uniter of Democrats and Republicans over what is normally a contentious process would be too much for him to resist. Just look at how much he relished his role in the Gang of 14, and the press coverage.
February 4th, 2008 at 4:35 pm
If Hillary wins, we get 4 years of liberal judicial appointments followed by a new period of conservative judicial appointments. If McCain wins, we get 4 years of squishy moderate judicial appointments followed by a new period of liberal judicial appointments.
The appointees of 2008-2012 are important. So are 2012-2016. And 2020. And 2024.
I just can’t believe that it’s anything but shortsighted to destroy the strength of conservatism, JUST for one or two judges in the next four years that are moderates instead of liberals. Where are judges supposed to come from after that?
Long term thinking applies just as naturally to judicial appointments as it does to the health of conservatism.
February 4th, 2008 at 4:35 pm
zzzzzzzzzzzzzz….huh, what’s that….zzzzzzzzzzzzzzzzzzzzz…huh?….vote for McCain, he’s really a conservative, I swear, I promise, really, he is…..okay, whatever you say man…..zzzzzzzzzzzzzzzzzzzz
ahhh….I better vote for McCain. Kavon, great post man…I’m convinced now…Oh, wait, you’re talking about John McCain…ahhh…nevermind
Mitt +1
February 4th, 2008 at 4:35 pm
If McCain is the nominee Hillary will appoint Bill Clinton to the Supreme Court to get him out of the House. McCain will then be in the senate and will stab republicans in the back joining the democrats to confirm his friend Bill. In 2010 there will be a sexual scandal on the Supreme Court. Bill will be impeached but not removed from office. He’ll stay in a justice for another 30 years.
February 4th, 2008 at 4:39 pm
“Mr. Romney could easily lead to a Goldwater-like debacle, in which the GOP loses not only the White House but also its ability in practice to filibuster in the Senate.”
In the midst of an article wholly focused on judges, is this a little hint that the GOP intends to do a 180 on their supposed core beliefs about filibusters, if faced with a President Clinton or Obama making judicial appointments?
February 4th, 2008 at 4:42 pm
I remember arguing this point at ConfirmThem back in the midst of the whole G14 epidsode that got JRB/Owen/Pryor confirmed, and threw Saad (who was unconfirmable anyway) and Myers (who was confirmable) under the bus. After some initial skepticism, I eventually agreed with McCain’s judgment on the issue back then, in that the blowback on the “nuclear option” would have been truly damaging to the confirmability of Bush’s eventual S.C. picks. I believe this viewpoint was eventually borne out, as Bush was able to get 2 excellent picks confirmed. The existence of the G14 proved to be a real obstacle to the Dems mounting a filibuster on Alito (despite the pathetic late attempt phoned in from Davos).
February 4th, 2008 at 4:44 pm
#6
Good point. If McCain nominates someone like Harriet Miers and the conservative base objects, I can see McCain saying “Screw You” instead of withdrawing the nomination like Bush did.
McCain will feel free to ignore the conservative base. He’s been doing it for at least the last 8 years.
February 4th, 2008 at 4:48 pm
Exactly, fran!
McCain ignores us (at best) or insults us when he’s looking for our vote. It’s not hard to imagine how he’ll behave to the conservatives whom he despises (like Michael Reagan) once he doesn’t even need our vote anymore.
February 4th, 2008 at 5:24 pm
Kavon, you need to update “The contenders” on the left, and you really should get rid of Keyes.
February 4th, 2008 at 5:35 pm
Romney is getting desperate…
http://www.youtube.com/watch?v=r1Hn2tTVjRo
See…that’s video proof right there…
February 4th, 2008 at 5:56 pm
It does NOT matter who you or anyone thinks McCain will appoint to the Court. HE WILL NOT WIN A GENERAL ELECTION against anyone. McCain has enough skeletons to fill up his walk-in closet, leaving it a Liberal VS Liberal and the Dem will win that one.
February 4th, 2008 at 7:15 pm
That was stupid Sam.
February 4th, 2008 at 7:43 pm
#11 — I agree. I’ve never understood how upset some people get over the Gang of 14. There are other complaints about McCain I fully understand — especially immigration — but the Gang of 14 just seemed to me to be a reasonable piece of political compromising. The Dems were refusing to confirm anybody, and this was an effort (successful) to at least get some of the nominees through.
Half a loaf, and all that.