Legal Commentary

McCain, judicial nominations, sleeves, and warts

By Beldar

I don't much care about Wall Street Journal political reporter John Fund's report yesterday that's roiling the blogosphere and cable news talking head shows. Fund reported that Sen. John 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.'"

Since Sen. McCain led a gang of other Republican renegade senators in deserting their party's sitting president and colluding with the opposition party to throw some of that president's pending judicial nominations down the toilet ? jettisoning along with their confirmation chances the chance for a constitutional showdown that could have ended senatorial filibustering of judicial nominees ? there is nothing that Sen. McCain can do, and certainly nothing he can say or write as a campaign promise, to restore his credibility with me on the subject of judicial appointments.

Oh, yes, he did vote to confirm Roberts and Alito. But could we possibly set a lower bar than that for someone who's supposed to be a leader of his party and a contender for the opportunity to fill as many as three SCOTUS seats in the next term?

There are a lot of good things that can be said about Sen. McCain by good conservatives ? but not on this issue.

By taking the "constitutional option" (a/k/a "nuclear option" in Dem-speak) off the table, McCain and his fellow "maverick" GOP cronies doomed not only a handful of worthy circuit and district court nominees to non-confirmation, they ensured that the White House would thereafter dare not make any more controversial nominations to those vitally important lower courts. For "controversial nominations," read "demonstratedly and predictably conservative nominations just like Roberts and Alito would have been, but for the higher profile of SCOTUS nominations."

The only way that the Dems could justify stonewalling Dubya's circuit and district court nominations was that the stonewalling happens mostly out of sight, and rarely if ever makes a blip on the general public's radar screens. They couldn't get away with denying a floor vote to a SCOTUS nominee.  But John McCain led the deal that let the Dems guarantee that they could continue to exercise an effective veto on circuit and district court nominations for the remainder of George W. Bush's term, regardless of the outcome of the 2006 elections. The unquestionable result of the Gang of 14's "compromise," as brokered by John McCain, will be two-fold: There will be more judicial vacancies at the end of the Bush-43 term than there ought to be; and such district and circuit judges as have been nominated and confirmed by January 2009 will be mostly bland ones whom McCain's Democratic allies permitted to go through because the Dems couldn't dredge up or even manufacture remotely plausible objections. Some of them will nevertheless turn out to be very fine judges despite their lack of histories around which the Dems could weave their objections. But if your goal is conservative judges, giving the Dems a veto, which ie exactly what McCain did, is a bad idea.

No sir, the day John McCain led the Gang of 14, he forfeited all of my trust ? irrevocably ? on judicial selection issues. No ma'am, I don't care what words he mouths now on that subject.

In fact, I'm slightly more inclined to believe Rudy Giuliani's promises about appointing conservative judges than McCain's. Sure, it's contrary to Giuliani's own stance on many social issues; and I'm far from entirely comfortable about Giuliani's campaign promises on this and other subjects. But at least Giuliani hasn't already betrayed this particular trust, and then equivocated about that betrayal. Whereas McCain, whether right or wrong on those social issues, has already shown himself to have no backbone, and to be a willing collaborator with the Dems, specifically when it comes to appointing judges at the circuit and district court levels. (Giuliani's own "collaborator" problems kick in on other issues, like gun control and immigration.)

To the limited extent that I care at all what McCain says now, the mere fact that McCain continues to defend the Gang of 14 deal out-shouts anything else he says. And saying now that he "fought for" the abandoned nominees is just a palpable lie. The way to fight for them was to continue at least threatening to use the "constitutional option." There was no other way to fight for them. There was no other way to even get their nominations to the floor for a vote! To even pretend that those abandoned nominees had a chance once the Gang of 14 struck its deal is comparable to the Brits and French saying in September 1939, "Well, we did still root for the Czechoslovaks after we forced them to give Hitler the Sudetenland last year. Gosh, we really thought they still had a good chance, but we just ran out of time. How could we know he'd go on to gobble up the rest of their country, and Poland too?"

Stepping back and looking at the big picture: Collaborating with the Dems to defeat the Bush Administration's most conservative circuit and district court judicial nominees isn't remotely the same as collaborating with the Viet Cong and North Vietnamese while American POWs (including McCain) were imprisoned. John McCain is not John Kerry, and the Dems are only misguided political enemies of the GOP and conservatism, not profound and literally mortal enemies of western civilization. And I'm sure that in his own mind, McCain has thoroughly rationalized what he did, just like he's rationalized (and now is soft-pedaling) his prior stands on campaign finance reform and immigration. I'm not one of those self-destructive conservative idiots who is going to sit out the 2008 election if McCain turns out to be the GOP nominee. Indeed, if he is nominated ? which I still think is unlikely, but I no longer can rule out as a possibility ? I'll support him, and defend him, and promote him, and vote for him against whoever the Dems nominate. I will accentuate the positive, for him or any other GOP nominee.

But just don't insult my intelligence by pretending that John McCain is a reliable conservative on the subject of judicial nominations. From the point of view of any knowledgeable conservative, this is one of the huge warts on this particular candidate. And he doesn't have to "wear" that particular lack of conservatism "on his sleeve," because it's a wart that's as plain as his nose. You can secure my enthusiastic agreement that the Democratic alternatives are uglier, that they're practically "all-wart." But quit trying to pull my leg about McCain and this particular subject, okay?

Maybe if McCain is making a SCOTUS nomination, he really will pick another Roberts or Alito. What concerns me, though, is that at best, he'll gladly let the Dems pressure him into packing the circuit and district courts with Kennedys, O'Connors, and occasional Souters. I have no doubt that John McCain would be willing to take on the Dems on matters of national security, even if it means a bloody, long-term dispute. But I also have no doubt that if pressed (and he will be), he would make his picks, and then cut quiet deals left and right, to avoid such fights over judicial nominees below the SCOTUS level. Since he's already abandoned conservative principles and cut a deal with the Dems on nominees to those courts even when the GOP controlled the Senate, why would he possibly stand up to them as president, especially if they continue to control the Senate?

Full post as published by BeldarBlog on January 29, 2008 (boomark / email).