Legal Commentary

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.

From my perspective, at least, there is no small irony in Calabresi and McGinnis' call for restoring constitutional government, given the activities of the current occupant of the White House; if anyone has made constitutional restoration necessary, it is not the demon liberals but George W. Bush. But I suspect they probably don't see things the way I do.

In any case, Calabresi and McGinnis somewhat exaggerate the dangers of new Democratic appointments: Given the most likely retirements, the most plausible scenario is that a Democratic President will be able to ensure that Ginsburg, Stevens (and possibly Souter) are replaced by liberals, thus preserving the status quo. On the other hand, it is the Wall Street Journal editorial page, so a degree of foaming about the mouth about the liberal judicial menace and its imminent destruction of the country is de rigeur.

Putting all this to one side, however, I find much to agree with in Calabresi's and McGinnis' appraisal of John McCain. My sense is that Republicans have seen the composition of the federal judiciary as a far more important issue in elections than Democrats have for some time. So it is no surprise that when Republican commentators describe what they want from a candidate, they often mention conservative judicial appointments as one of their top concerns. There has been recent controversy about whether John McCain is really committed to appointing strong conservatives to the Supreme Court. But from my perspective at least, it's hard to think that he would not try. If a Republican is elected president, the most important limitation on judicial appointments will be the composition of the Senate. If the Democrats gain several seats, they will be in a far stronger position to require a Republican President to moderate his nominees, whoever that President might be.

I don't see much reason to think that a Romney Administration or a McCain Administration would be all that different in terms of their judicial choices. To be sure, McCain might want a candidate who wouldn't eviscerate what's left of the McCain-Feingold campaign finance law. But the number of conservatives who wouldn't do that and are reliably conservative on all of the other issues that the base cares about is very small indeed.

Conversely, I have no reason to believe that either McCain or Romney really want to overturn Roe v. Wade, or, for that matter, Lawrence v. Texas or any of the substantive due process cases that drive judicial conservatives nuts. Like their predecessors, I suspect that McCain and Romney would prefer a Court that hollowed out Roe without officially overturning it. All this suggests that the Republican playbook on judicial nominations will pretty much be the same as it has been in recent years: Work hard to stock the federal courts and the Supreme Court with reliable conservatives, who can stay on the bench for many years and reshape the Constitution and federal law in a conservative direction. Indeed-- and this is the whole point of the hallowed strategy of partisan entrenchment-- if you no longer control the Congress, and only intermittently control the Presidency, it is a particularly good idea to entrench yourself in a branch with life tenure. The Federalists understood this in 1800, and so has every other political party after them.

Full post as published by Balkinization on February 04, 2008 (boomark / email).