Much controversy has centered recently around John McCain's possible judicial nominees should he become president. In my view, a President McCain would face a difficult tradeoff between the goal of appointing conservative jurists and the goal of saving the McCain-Feingold law from invalidation by the Court.
John McCain may well be sincere in claiming that he wants to appoint conservative justices. However, he is undoubtedly even more sincere in his support of the McCain-Feingold campaign finance law, his proudest achievement as a legislator. The narrow conservative majority on the Supreme Court is not fond of McCain-Feingold and has already significantly narrowed its scope in the Wisconsin Right to Life case. The five conservatives most likely believe that McCain-Feingold is unconstitutional; that applies also to swing voter Anthony Kennedy, who voted to strike down most of McCain-Feingold in McConnell v. FEC, the 2003 decision that narrowly upheld the law by a 5-4 margin (here is Kennedy's strong dissent in that case).
If he wants to have any chance at all of saving McCain-Feingold, a President McCain will have to appoint justices committed to upholding it. As a practical matter, however, there are few if any conservative jurists who are both 1) qualified to sit on the Court, and 2) likely to vote McCain's way on campaign finance issues; I can't think of even one offhand. Almost any well-known jurist likely to vote the conservative way on federalism, property rights, abortion, and other major constitutional issues is also likely to be just as committed to striking down McCain-Feingold as the conservatives currently on the Court. Thus, McCain will be strongly tempted to appointmoderate to liberal justices or a "stealth" candidate like Justice Souter with no clear judicial philosophy. The stealth approach failed for George W. Bush when the Harriet Miers nomination blew up in his face. However, McCain might do better with it, since he would be facing a Democratic-controlled Senate rather than a Republican one.
I honestly don't know whether McCain - should he be elected - would put his desire to uphold McCain-Feingold above his campaign promises to appoint conservative justices. However, the possibility that he might appoint an analogue to Justice Souter or Harriet Miers in order to save McCain-Feingold is a very real one. This concern is only slightly assuaged by recent endorsements of McCain by conservative legal luminaries such as Ted Olson and Miguel Estrada. Perhaps they know something about McCain's plans that I don't. However, it will take a lot more evidence to convince me that McCain is genuinely willing to set his commitment to McCain-Feingold aside in making Supreme Court appointments.
Supreme Court appointments are not the only issue in the presidential election and probably not the most important. However, conservatives and libertarians who care about legal issues should be aware of the possibility that a President McCain might end up appointing justices likely to vote against their positions on most major constitutional issues before the Court. The above is not an endorsement of Mitt Romney, who has his own shortcomings. Nor is it a comprehensive rejection of McCain, whose positions on some issues I very much agree with. It does, however, flag an important concern about McCain's potential judicial appointments.
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- An Overlooked Potential Benefit of Conservative Distrust for McCain:
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- 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:
I see nothing to disagree with in this post. Maybe Olson, Estrada and others can think of some way for McCain to achieve his campaign finance reform goals without running afoul of the (the?) conservative view of the Constitution.
If the question is a potential justice's pro-life views vs. a potential justice's McCain-Feingold views, it seems much less likely that he'd appoint a Justice Souter just to save McCain-Feingold.
Lets face it though, we are much more likely to get a Souter from McCain or Romney or Guliani, than we are a Scalia, Roberts or Thomas. At least W
Will they be the same--whomever is elected will nominate a Souter look-alike? I might trust Thompson or even Giulani to make somewhat better choices than McCain might make, but how many who read this blog (including Ilya) think that Clinton/Obana appointments will be no different than McCain appointments?
For reasons which I think are bad, it is likely that the next two appointments to the Supreme Court will be a Woman and a Hispanic. Who does McCain have to choose from. A number of female candidates have been mooted during Bush II's term, and I don't think that the list will be much expanded beyond them. The same is true of Hispanic names (other than Gonzales who is no longer in consideration). Miguel Estrada?
And the Democratic candidates: Rosemary Barkett? Deval Patrick? No difference between them and those, even the most liberal, candidates that McCain is likely to appointment?
I don't think McCain is the ideal candidate for a most conservatives, and I also have substantial reservations about him--but it beggars belief that there is no significant difference between him and the two remaining Democratic candidates--Hillary Clinton who is campaigning to add 800 BILLION in new benefits (or are they bribes?) and Barak Obama, recently classified as the most liberal of all 100 Senators (even more liberal than Bernie Sanders, the Socialist from Vermont).
Kennedy is far from a "swing" voter when it comes to campaign finance. The closest candidate for campaign finance swing voter at this point is the Chief- he's the court's only conservative who hasn't indicated a willingness to explicitly overturn any campaign finance precedents, but we all know he isn't too far from the others in this area.
I can't remember where I saw this, but I've read somewhere that Estrada reportedly told some of his associates that he disapproves of the (very small) steps the Rehnquist Court took to constrain federal power at the margins. I don't know his view on campaign finance, but Estrada's hostility to keeping Congress within its Article One constraints is more than enough to make the possibility of his appointment to the Supreme Court unacceptable to me.
I agree. I meant that he's a swing voter on the Court more generally.
Five conservatives? Alito, Roberts, Scalia, Thomas... and who?
Not Breyer, Souter, Stevens, or Goldberg.
I realize it was a typo for Justice Ginsburg.
I support McCain, dislike McCain-Feingold, and frankly, I have my doubts as to whether McCain's litmus test for Supreme Court judges is upholding McCain-Feingold.
If I remember correctly, the controversy surrounding Miers's nomination to the Court was not due to her "stealthiness", but to her qualifications. The two things that recommended Miers for the Court were her Bush family connections and her sex. She had not distinguished herself as a lawyer, judge, or scholar. I believe the fear of her turning out to be another Souter came second to her lack of qualifications.
A consideration that Republican voters should think about is that it is important to preserve 40 votes in the Senate should the Democrats win. This will prevent Clinton or Osama from going hog-wild when nominating justices, as they coud do if the Democrats had a filibuster-proof majority.
McCain, if nothing else, would attract enough independents and Democrats to make a Democratic landslide unlikely.
Ilya, I'm curious if you're aware that McCain has stated very clearly that McCain-Feingold won't be an issue for him in selecting judges. (I believe there was something on Bench Memos about this recently.) If you are, then are you saying you don't believe him? You're treating him as if it will be his most important concern when he's said that it won't be important at all.
Yes, there is. Plenty. McCain said McCain-Feingold was of "transcendent importance to me." He has asserted that it is his most important achievement. And, if he gets into the White House, you can bet that it's only the beginning.
There is an excellent piece on McCain-Feingold at: http://www.reason.com/news/show/36322.html
A while back someone here noted that Thompson had recanted his support of McCain-Feingold, saying that it was a mistake, but the article he pointed to had Thompson actually saying the exact opposite.
No, not really. It's more akin to fans of the Kansas Jayhawks checking into Final Four accommodations.
You got a line on Dodgers' series tickets? Count me in!
I so tend to agree this is all a bit of a premature concern. And in this election it may well turn out be a hypothetical concern only.
No...We're voting for a president, not a miracle worker.
You made my day. I am still laughing.
Thank you. It is an excellent piece. As was a link to McCain that went to the LA Weekly.
Ilya,
What has McCain-Feingold done to get money out of politic? Have you not heard of George Soros and MoveOn.org or, for that matter, the Swift Boat Veterans? What has this law done but help incumbents and the super-rich i.e. Ned Lamont & Mitt Romney (Mass.), Pedersen (AZ.) et al. If the super rich can spend their own money, they immediately have a huge advantage over the regular guy. Maybe you think the Framers of the Constitution only wanted the most wealthy people in the nation to run for office (and I am sure they never envisioned career politicians), but I must disagree.
But that is what is happening, thanks to this law.
Call me crazy, but I just can't envision that the Founders wanted the First Amendment to protect pornography but not political speech.
I would be most interested in hearing what good you think this law has done. After all, it does infringe on free speech and the good should be obvious & overwhelming at the least, to justify the infringement on speech.