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.
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: