Legal News

President John McCain and the Supreme Court

By Peter Lattman

On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. If the oldest of the remaining presidential candidates wins the election — on Jan. 20, 2009, John McCain will be 72 — what does this mean for the future of the federal judiciary?

Steve Calabresi and John McGinnis, both Northwestern Law professors and Federalist Society diehards, examine this question on the WSJ’s op-ed page this morning. They face up to the fact that McCain is the most electable conservative candidate, and he’s far better than the alternatives. “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,” they write. “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.”

They extol McCain’s past record on judges. “On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006,” they say. “His pro-life record also provides a surety that he will not appoint judicial activists.”

But what about his campaign-finance reform obsession, conservatives ask? And what about his card-carrying membership in the “Gang of 14,” which opposed the attempt to end filibusters of judicial nominations, right wingers say? The writers attempt to mollify their readers on both these points, and then explain that conservative complaints on these issues “makes the perfect the enemy of the very good results” that McCain has achieved, and could achieve, as president.

Law Blog Expression of the Day: “The perfect is the enemy of the good.” It comes from Voltaire, but the first time the Law Blog ever heard the expression was in George Will’s classic baseball tome “Men At Work.” The great Dodger pitcher Orel Hershiser told Will that the phrase represented his philosophy of pitching. We also think it’s a great philosophy of life. Sit and ponder that over your Monday morning coffee.

Full post as published by Law Blog - WSJ.com on February 04, 2008 (boomark / email).