Opinion

On judges, don't doubt McCain's conservatism

He pledges to appoint clones of Alito and Roberts.

By

Now that John McCain is all but assured of being the Republican nominee for president, conservatives are struggling to unite behind the man they consider, at best, a maverick – and, at worst, a traitor.

He promoted amnesty for illegal immigrants. He worked with liberal Democrats. He panders to the mainstream media. Those are just some of the charges conservatives throw at Senator McCain.

A particularly sore point has involved McCain's alleged liberal perspective on selecting federal judges, especially for the Supreme Court. But on this score, conservative fear is misplaced. A careful reading of his statements and his Senate record shows that McCain's "maverick" approach bodes quite well for those who cherish a conservative judiciary.

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The senator has carefully repeated the conservative Republican Party mantras regarding federal judicial appointments demanded of all viable GOP candidates. For instance, McCain has praised President Bush for selecting justices "who strictly interpret the Constitution." And he observed that "one of our greatest problems in America today is justices that legislate from the bench."

He has pledged to appoint jurists who construe the Constitution and legislation, rather than make social policy or assume the role of judicial "activists." Indeed, one critical line of McCain's Super Tuesday speech was a clear, direct appeal to the GOP base: "I am a Republican because I believe the judges we appoint to the federal bench must understand that enforcing our laws, not making them, is their only responsibility."

McCain has also made the standard promise to name Supreme Court justices who share the perspectives of Chief Justice John Roberts as well as those of Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

When some conservatives attacked McCain for remarking that he was reportedly troubled because Justice Alito "wore his conservatism on his sleeve," he set the record straight: "I will try to find clones of Alito and Roberts."

Critics often target McCain for working with moderate Republicans and Democrats to assemble the despised "Gang of 14." The action of those 14 senators in 2005, however, precluded the Republican majority from detonating the "nuclear option," which would have prevented filibusters for judicial nominees. McCain critics seem to forget that this endeavor ensured that the Senate would not filibuster Justice Alito. The effort also led to the prompt confirmation of many conservative judges, including such luminaries of the right as District of Columbia Circuit Judge Janice Rogers Brown and Eleventh Circuit Judge William Pryor.

Some observers have vilified McCain for cooperating with Democrats and reaching across the aisle, practices typified by his involvement with the Gang of 14. Nonetheless, bipartisanship and consensus-building may be attributes that will serve McCain and conservatives well over the longer term.

If Democrats win the presidency and enlarge their Senate majority this autumn, conservatives will thank McCain and the Gang of 14 for the GOP's ability to filibuster judicial nominees whom they deem overly liberal.

Bipartisan cooperation may also permit the Republican minority to participate in constructive judicial appointments and conserve their energy for more-fruitful initiatives.

A striking, particular example is the Fourth Circuit, which numerous observers believed was America's most conservative appeals court. The Bush administration renominated to the court on multiple occasions a few candidates whom a Senate majority had indicated it would not approve, rarely consulted about potential nominees with home-state senators – even Republican members – and continuously tendered individuals who were not consensus nominees.

These actions and inactions have left five of 15 judgeships empty on the Fourth Circuit, which has reduced the tribunal's conservatism. The court presently has five judges whom Republican presidents named and five whom Democrats appointed.

Regardless of whether the Senate approves nominees for any of the five openings before 2009, President Bush's selection approach has enabled the Fourth Circuit to become a more centrist tribunal.

McCain may be less ideological than certain conservative Republicans would like. Nevertheless, his record suggests that they should not be concerned. In fact, McCain might rectify or temper the accusations, recriminations, divisive partisanship, and paybacks that have plagued the selection process by cooperating with Democrats, who may enhance their Senate majority in November.

Carl Tobias is a professor at the University of Richmond School of Law.

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