Most discussion and debate over Sen. John McCain's record on judicial nominations has focused on his role in the "Gang of 14." See, for example, this defense of his record by Adam White and Kevin White, and this response by Andrew McCarthy and Mark Levin at NRO.
For those (like myself) who follow these issues closely, John Fund presents an interesting McCain tidbit in a column discussing how McCain could mend fences with conservatives:
Then there is the issue of judicial nominations, a top priority with conservatives. Nothing would improve Mr. McCain's standing with conservatives more than a forthright restatement of his previously stated view that "one of our greatest problems in America today is justices that legislate from the bench." Mr. McCain bruised his standing with conservatives on the issue when in 2005 he became a key player in the so-called gang of 14, which derailed an effort to end Democratic filibusters of Bush judicial nominees. More recently, Mr. 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."So if Justice Alito was too openly conservative for McCain, what sort of justice would he appoint? Who, if not Alito, would qualify as a nominee like John Roberts?
UPDATE: NRO's Byron York got the chance to ask McCain about the quote. He reports:
I got a moment with John McCain, after an airport rally here in Orlando, to ask him about a report today by John Fund quoting some unnamed conservatives quoting McCain to the effect that, in Fund's words, "[McCain] 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.'"This would seem to be a complete disavowal of the substance of John Fund's report. It is also consistent with other remarks McCain has made, as Ramesh Ponnuru notes here [and a commenter notes below]."Let me just look you in the eye," McCain told me. "I've said a thousand times on this campaign trail, I've said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I've said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked."
"I don't get it," McCain continued. "I have a clear record of that. All I can tell you is my record is clear: I've supported these guys. I went to the floor of the Senate and spoke in favor of them. It's in the record, saying, 'You've got to confirm these people.'"
I asked whether McCain had ever drawn any distinction between Roberts and Alito. "No, no, of course not," McCain said.
I asked about the "wore his conservatism on his sleeve" line. "I'm proud of people who wear their conservatism on their sleeves, because they have to have a clear record of strict adherence to the Constitution," McCain told me. "Remember, in all my remarks, I've said, look, we're not going to take somebody's word for it. You have to have a clear record of adherence to the Constitution, a strict interpretation of the Constitution. I have said that time after time after time."
"And maybe as an aside, why would I say anything derogatory about somebody like that? What would be the point, after working so hard to get not only those two confirmed, but the Gang of 14 which I know is controversial but our record of getting those judges confirmed that the president nominated, I'm still proud of."
One very minor caveat: In his exchange with York McCain further claims that he "continued to fight for" confirmation of the Bush nominees who the Gang of 14 did not agree to support. This statement is harder to credit. It has been widely reported that Senator McCain opposed the confirmation of one nominee, Michael Haynes, to the U.S. Court of Appeals for the Fourth Circuit. McCain objected to Haynes' role in the development of military policies on enemy combatants and interrogation methods. This is wholly understandable given McCain's strong position on the subject, and I doubt it would dissuade anyone who is otherwise considering throwing their support behind McCain.
Meanwhile, John Fund is reportedly standing by his story. SECOND UPDATE: More from Professor Bainbridge here.
Related Posts (on one page):
- An Overlooked Potential Benefit of Conservative Distrust for McCain:
- The Downside of Mavericks:
- Assessing McCain:
- McCain & Romney On Judges:
- Calabresi & McGinnis on McCain & Judges:
- John McCain and the Judiciary:
- Novak on McCain & Judicial Nominations:
- Levy on McCain and Judges:
- McCain & Judicial Nominations:
But then I didn't go to law school.
Conservatives of various stripes have to ask themselves whether Hillary! or CHANGE-Obama-CHANGE will nominate judges that they prefer to McCain's (theoretical) choices. An obvious point, I know. But McCain is the best shot for the GOP in what is going to be a rough election year for them in any case. I'd trust him before I'd trust the two Democratic front-runners.
But why should they be any smarter than the imbeciles in Florida who supported Green Party candidate Nader instead of Gore because he would have been better for the environment.
It is in the nature of extremists of both wings to prefer to lose purely than accept any compromise.
Maybe J. Alito has Federalist Society cufflinks. :-)
Has anyone seen a source for that quote because I don’t remember Senator McCain ever saying it and when I did a google search of the phrase "he wore his conservatism on his sleeve" the only hits I get is this article and blogs that reference this article.
Based on some of McCain's on the record statements, HE views it as such an attack, too.
The efforts we undertook a year and a half ago, working with Senators of both parties, who were concerned about abuses of the filibuster tradition, was resulted in a substantial increase in the confirmation of the President’s Circuit Court nominees. Priscilla Owen, Janice Rogers Brown, and Bill Pryor have all been confirmed, and this year Brett Kavanaugh was confirmed to the US Court of Appeals for the DC Circuit. The President nominated these individuals; I supported each of their nominations; and we fought successfully to confirm them. President Bush now has a higher percentage of his nominations confirmed to both the District Courts and the Circuit Courts than did President Clinton during his presidency. I am also proud to see Chief Justice Roberts and Associate Justice Alito serving with such distinction on the Supreme Court."
Many conservatives argued against filibusters of judicial nominations as "extra-constitutional." I would expect such conservatives to continue to oppose such filibusters if/when there is a Democratic president. I will certainly oppose any use of the filibuster to block Democratic judicial nominees, and I know others (e.g. Hugh Hewitt) are on record staking out this position as well.
Interestingly enough, in an interview on the Glenn &Helen Show, McCain argued that one argument in support of the "Gang of 14" deal was that it preserved the filibuster for judicial nominations so Republicans could use it against unacceptable Democratic nominees. Adam White &Kevin White also make this argument.
JHA
Thanks for the thoughtful answer (and please call me Joe). FWIW, I personally would get rid of all filibusters on all matters. But nobody's giving me that authority and I'm not holding my breath waiting for it to happen.
As to the conservative position on filibusters, I would defer to your knowledge of the relevant community. But I'm thinking actual Republican elected officials might not be that principled (I recall their positions on, say, term limits and the balanced budget amendment back when Republicans weren't in the majority and then, well, when they were). That's not to say Dems are more principled, but rather that my question should have been more specific: will Republican elected officials still think it a violation of conservative principles to vote to filibuster a Dem-nominted judge?
The Constitution says nothing about filibusters. Nothing about filibusters in legislation, and nothing aboug filibusters in judicial nominations. It just requires the "consent" of the Senate. And it permits the Senate to make its own rules. Thus, the Senate determines what "consent" is.
Further, if filibusters of judicial nominations really were unconstitutional, how would it be constitutional to deny nominees votes, or place secret holds on them, or use all the other nonmajoritarian tactics that Republicans used to prevent Democratic nominees with Senate majorities behind them from being confirmed?
The fact is, it is perfectly obvious that filibusters, including judicial filibusters, aren't unconstitutional. They are simply one of the many rules and processes installed by the Senate to whittle down the various matters that are placed under its consideration and to determine what will get an up or down vote. And conservatives know this.
I don't expect conservatives to continue advocating for the proposition that judicial filibusters are unconstitutional when the Democrats are in power for the simple reason that I don't think conservatives really believe they are unconstitutional. This was a power play, pure and simple.
In addition to his television appearances around the time of Alito's nomination, in which he unflaggingly said positive things about him, here's McCain talking to South Carolinians last year about Roberts and Alito:
Note to overly credulous bloggers: McCain's black baby wanted to filibuster Alito!
While I’m tentatively a Romney supporter and I think Senator McCain is wrong on a few issues, I do respect him and think he has generally been straightforward about his areas of disagreement. Moreover the fact that there is no record of him uttering these words anywhere except for the unsourced John Fund editorial and it is now only appearing the day before the Florida primary sends off more than a few red flags.
I'm with Adler and Hewitt.
It was pretty baldly and unashamedly self-serving, and drew a distinction without a difference. As the piece by the Whites noted, the "constitutional option" or "nuclear option" is really just "a way to work the parliamentary procedure rules to get the outcome we want." There's nothing that would stop either Democrats or Republicans from doing the exact same thing on a legislative proposal, and essentially killing the filibuster forever.
Personally, I think that might not be half bad as an outcome, but that is definitely not the way I'd like to see it come about.
With respect to Sen. McCain's worry about conservatism on sleeves -- why, in his long response to BYork, did he not say that he never said such a thing, or that he didn't remember saying such a thing, or that if he'd said such a thing, he'd expressed himself poorly, or been mistaken? I find it odd that his discussion is all so peripheral. Does this, too, reflect the Republican mind at work?
First McCain-Feingold, then the Gang of 14, and now HUMAN CLONING!
He is CLEARLY no conservative!
April 2007:
"He told his audience ... I’m also proud of the fact that (Republican senator) Lindsey Graham and I –- with five other Republicans joined with seven Democrats” to design an anti-filibuster deal that allowed Bush nominees John Roberts and Sam Alito to win confirmation.
Promising conservative judges
McCain called them “two of the finest justices ever appointed to the United States Supreme Court.”
As McCain made a point of telling the audience in Columbia, “there may be as many as three vacancies on the United States Supreme Court” in the next presidential term. “It’s going to be a very, very important responsibility of the next president.”
His judges, he implied would be in the mold of Thomas, Alito and Roberts and, he vowed, “would strictly interpret the Constitution.”"
Jan 18, 2008:
Mr. McCain emphasized his commitment to appoint conservative Supreme Court judges. At a rally earlier in the day he called justices John Roberts and Samuel Alito “two of the finest judges … in the history of this country.” On the Yorktown, he told the crowd that as president he would “look for a clone of Justice Roberts. I’ll look all over the planet.”
Jan 25, 2008:
As models of who he would select, John McCain pointed to Justices Samuel Alito and Antonin Scalia.
I’m tentatively a Romney supporter but I’ll say it – unless John Fund either names his sources or they step forward, as far as I’m concerned he is standing on a foundation of sand. I’ll take the word of one man – whom I know to be honorable even if he’s wrong some of the time – defending his reputation over that of any number of anonymous cowards who won’t go on the record with their accusations.