Today's Robert Novak column supports John Fund's claim that Sen. McCain has made comments suggesting he would be unlikely to nominate someone like Samuel Alito to the Supreme Court. Specifically, Novak reports the following:
Fund wrote that McCain "has told conservatives he would be happy to appoint the likes of Chief Justice 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.' " In a conference call with bloggers that day, McCain said, "I don't recall a conversation where I would have said that." He was "astonished" by the Alito quote, he said, and he repeatedly says at town meetings, "We're going to have justices like Roberts and Alito."
I found what McCain could not remember: a private, informal chat with conservative Republican lawyers shortly after he announced his candidacy in April 2007. I talked to two lawyers who were present whom I have known for years and who have never misled me. One is neutral in the presidential race, and the other recently endorsed Mitt Romney. Both said they were not Fund's source, and neither knew I was talking to the other. They gave me nearly identical accounts, as follows:
"Wouldn't it be great if you get a chance to name somebody like Roberts and Alito?" one lawyer commented. McCain replied, "Well, certainly Roberts." Jaws were described as dropping. My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative.
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Hey, wait a minute, isn't that what we wanted?
The rabid RedStaters think that's heresy; they don't just want to win, they want to rub the other side's nose in the poop.
What *else* was he going to say? "Souter, now THAT'S my idea of a judge"???
This is one of the sillier games of gotcha currently being played among the McCain is the Death of Everything We've Ever Held Sacrosanct crowd.
And to show I'm not a rabid McCainite: just as silly as the "Romney said we should talk to al-Maliki and try to reach confidential deadlines for the turnover of security functions to the Iraqi Government" game of gotcha.
Though honestly, I am not a close enough court watcher to give you a good sense of what methodological issues Roberts and Alito disagree on, and I have my doubts that McCain knows either.
Even if you think McCain's nominees to the Supreme Court are likely to be indistinguishable from those of his Democratic opponent (which seems a pretty unreasonable view), there are the Federal Courts and District Courts to consider. The Federal and District Courts are where the bulk of case law actually gets made, and where those issues that come up for Supreme Court review get framed. There are a LOT of vacancies to these positions already, and many more will open during a four year presidency. Both political expediency and the sheer numbers of vacancies involved will force McCain to draw from a fairly broad spectrum of Republican lawyers and jurists when making appointments. He'll need to appoint Ailitos and Scalias to the bench even if he really would prefer to appoint nothing but Souters and O'Connors. These people, as a class, are going to have a very different set of legal viewpoints than a judiciary selected by, say, the person who gave us Zoe Baird, Kimba Wood and Janet Reno.
I would also note, at least in passing, that Senator McCain voted to confirm not only Justice Alito, but also Judge Bork to the Supreme Court.
Where on earth are we going to find another judge like Thomas?!?!
Unhelpful is for you to judge, but I fail to catch the sarcasm. Obviously, every Republican candidate has the same four favorite justices. If there was any sarcasm, it was directed at Romney, not at anyone here.
Case in point:
See the difference between Romeny's answer and McCain's.
Ingenious ploy, in any case. McCain can refute the charges completely (like he has done) and can point to his actions during the Alito confirmations (he fully supported Alito) but since his accusers are in the shadows, he will have no way of disproving their allegations.
I don't want to rub their noses in poop. I just want to crush my enemies, see them driven before me and hear the lamentation of their women.
It got us Kennedy.
Ooh, big difference.
Sure, to the extent that the Democrats let him without putting up too much of a fight, he might nominate some judges we'd like to the lower courts, where they couldn't do too much, (from his perspective) "damage". Just as a sop to the Republican base. But on the Supreme court? Never.
He may say what he wishes to the contrary, but his incentives are too clear for such claims to be plausible.
Might I recommend a prosecutorial career?
With respect to the initial post, Alito's my favorite justice and I'm still backing McCain. He may just not want to get bogged down in a knock-down, dragout confirmation battle over one qualified right-minded nominee when there may be another qualified right-minded nominee who could sail through with much less opposition, allowing the president to accumulate credibility rather than expending it and legitimating the conservative legal project in general.
Hell, I like Kennedy better O'Connor. Souter is the worst of the worst on social issues.
In any case, I don't blame you. Breyer, Souter, Kennnedy aren't exactly the superstars of the SC. Plus they all look alike anyway.
One might say that Romney's previous support for abortion rights would make it more likely that he would nominate judges who believe in the right to privacy.
One might say that Huckabee's support for anti-gay marriage legislation and/or an anti-gay marriage constitutional amendment call into question his commitment to federalism as a guiding principle.
In other words, this is a nothing issue. In fact, re-reading Fund's version of the McCain statement, it's possible that McCain was just saying, "ahh, yes, Roberts, certainly types like him" without really intending to disparage or even distinguish Alito.
A Republican president who does not care about the issue, and especially if he reviles at judges who are demonstrably conservative, will not give us justices like John Roberts (there is not another John Roberts), but rather are likely to give us ones like Warren, Brennan, Blackmun, Stevens, and Souter -- all of whom were appointed by Republican presidents under the mistaken view that such candidates were either conservative or moderate-conservative. Conservative court watchers would be lucky to see McCain appoint someone who turns out like O'Connor or Kennedy, and they can forget about seeing appointments like Roberts, Alito, Scalia or Thomas.
But you're right; certainly none of those 3 is in any way (to use Obama's phrase about Reagan) a "transformitive" jurist.
Well, that is useless. They don't remember what he said, but they are sure it was bad.
I don't see how Justices can stay conservative if you keep moving the goalposts.
District court nominees are de facto selected by the senators from their state. Generally the senators from any given state take turns selecting a nominee, even when they are members of different parties. Presidents seldom intervene in such selections and instead nominate the person recommended by the senator whose turn it is to make the choice.
On the Circuit court level, most judgeships are informally associated with a particular state and are usually filled by someone that state's senators select. Other senators (especially those from other states in the same circuit) might challenge these selections, but it's a bit unusual for the president to push for someone neither of that seat's senators wants. The president is more actively involved in nominations to the D.C. Circuit than to the others, both because of that court's importance and because D.C. has no senators of its own.
Do you suspect that he wants to upset conservative democrats, or are you just throwing around words you think are dirty?
You think nominating another Bork is a recipe for confirmation in a Democrat controlled Senate? You'd turn down another Anthony Kennedy to replace Ginsburg or Souter on grounds of his insufficiently pure conservatism?
Is this still the case? I recall a district court nominee in Connecticut coming under some ABA scrutiny with respect to her qualifications, and I believe her name was submitted to the President by the Republican governor rather than by either Senator.
Of course, it is good to get both Senators from a state on board with respect to a nominee, since a Senator can blue slip (place a hold) on a nomination from his state.
I suspect that the nexus there was that the memory of the fight in the Senate over Judge Bork, who had a long history of polemical writing, led the first President Bush to nominate someone without an incendiary paper trail (or to at least acquiesce in John Sununu's strong urging of the Souter nomination), so as to avoid a similar confirmation battle.
It's easy. Get a time machine and go visit his alternate, invented history of 1791.