The McCain Court: appointing conservative judges would undermine the maverick's legislative legacy.

Dougherty, Michael Brendan

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. Bush could be persuaded that the health of his party depended on judicial appointments that satisfied his core constituency. McCain's career has taught him that success comes from ignoring or opposing conservatives. Far from looking out for their interests, he will be focused on his own--safeguarding the measures that defined his Senate career.

McCain would be the first president in the modern era to come into office with major legislative accomplishments at the federal level. As conservative legal blogger Illya Somin wrote at "The Volokh Conspiracy", "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."

Protecting a senator's legacy is rarely the assigned duty of a Supreme Court justice, but it isn't unprecedented. Franklin Roosevelt, notorious for his conflicts with the High Court, appointed Hugo Black, a Democratic senator from Alabama and key ally on New Deal legislation. Black went on to reverse the Court's trend of overruling the battery of programs he and FDR championed. While McCain heaps praise on Roberts and Alito on the campaign trail, he surely realizes these two justices are doing more than any others to erase his proudest legislative achievement, campaign finance reform.

When McCain-Feingold passed, conservatives, particularly pro-lifers and gun-rights activists, wailed in perfect harmony with Rush Limbaugh, Sean Hannity, and other radio voices of the Right. The legislation threatened to regulate grassroots activism leading up to elections. After initial Supreme Court decisions ratified the legislation, George Will lamented, "The First Amendment is now permanently in play, its protections to be truncated whenever congressional majorities envision short-term partisan advantages." But in 2007, the Supreme Court gutted McCain-Feingold in FEC v. Wisconsin Right to Life. Justices Roberts and Alito co-wrote the majority opinion in the 5-4 decision, striking down key restrictions on political activism. McCain called the decision "regrettable" and lamented that the Court had "carved out a narrow exception by which some corporate and labor expenditures can be used to target a federal candidate in the days and weeks before an election."

Entering the Oval Office may change McCain's perspective. Conservative legal scholar Steven Presser maintains that, if elected, McCain would build a legacy apart from the legislature: "If I were McCain, and I were the president, I would be much more interested in establishing a legacy as president (by appointing good solid judges) than in preserving my legislative legacy. ... The fact that he's running for president, I think, means that he thinks that's more important than his current job."

But Republicans wagering that McCain will build a more conservative judiciary should pause over recent reports that he may not be enthusiastic about Bush's appointments after all. John Fund wrote in the Wall Street Journal that McCain has said he was happy with John Roberts, but might "draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'" While the McCain campaign vigorously denied the allegation, Robert Novak confirmed it in his column using different sources. In a private chat with conservative jurists, one lawyer asked McCain, "Wouldn't it be great if you get a chance to name somebody like Roberts and Alito?" McCain answered, "Well, certainly Roberts," before expressing his doubts about Alito to his shocked audience.

In one Republican presidential debate, McCain expressed admiration for his fellow Arizonan Sandra Day O'Connor. Asked whether he would appoint a justice like her, he averred, "I'm not going to second-guess Ronald Reagan." While conservatives have gleefully denounced O'Connor for over a decade, McCain couldn't even make the easy concession that he was sometimes disappointed with her rulings.

McCain's inability to distinguish between Sandra Day O'Connor and the strict constructionists he vows to appoint is no surprise. Much as activists on the Right agitate about judges, there is no reason to suspect McCain shares their concern. Constitutional lawyer Bruce Fein notes, "He has never spoken out or paid serious attention to the issue and never served on the Judiciary Committee. That makes you nervous. Someone who doesn't see the importance of the judiciary doesn't understand the system." Looking over McCain's legislative record, Fein sees reason to doubt that he will appoint strict constructionists: "McCain is not someone who thinks seriously about philosophy of government. ... He's incapable of thinking that deeply about separation of powers."

The danger for conservatives is that McCain's attitude toward the judiciary, characterized either by self-interest or ignorance, means he may well trade his judicial appointments for support of his own pet projects. The New York Times noted, "some Republicans say they fear that a President McCain, faced with a Democratic Congress, could use judicial appointments as a bargaining chip to achieve policy compromises." Fein echoes this judgment: "Unless a president wants to make judges an important part of this mission, he sells them."

For many conservatives, judicial nominations were the last reason to vote for a party that consistently flouted their principles on foreign policy, immigration, and the size of government. Now that the GOP is nominating a man who often led those dismal efforts, can the Right convince itself this time? McCain's uneven support for Bush's nominees and his incoherence on judicial matters doesn't bode well for conservatives hoping to overturn Roe or other artifacts of the Warren Court. "But," the pundits will say, "think of Obama's appointments." Fein sighs at the logic of diminishing expectations: "If you asked me: on judges would McCain be better than Obama? Then yes. That would be a very low bar."