Fearing the McCain Supreme Court

On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.
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A close look at John McCain's Senate voting record on judicial confirmations makes it painfully clear that progressives need to ignore the rantings of the Ann Coulter crowd and believe John McCain when he says he will listen to Sam Brownback and appoint judges like Samuel Alito and Antonin Scalia. On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.

Indeed, one looks in vain for a judge who is too ideologically conservative for McCain: he voted to confirm Robert Bork, Clarence Thomas and, unless I've missed something, every other Republican judicial nominee voted on in his 22 years in the Senate.

Even more tellingly, as part of his negotiation in 2005 of what has been dubbed the "Gang of 14 Deal" (more on this later), McCain pushed, hard, for the confirmation of both William Pryor and Janice Rogers Brown, the two hardest-edged conservatives appointed to the federal bench by President George W. Bush.

Pryor famously said of Bush v. Gore: "I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." As the Washington Post editorialized in a piece called "Unfit to Judge," that statement indicates such a nakedly political view of judging that it alone should have been disqualifying for a lifetime position on the federal bench.

Brown's views were even more outlandish. In speeches given to the Federalist Society and the Institute for Justice, Brown railed against judicial opinions in the 1930's upholding the New Deal as "the triumph of our own socialist revolution." Brown, almost alone among lawyers, openly yearned for a return of the so-called "Lochner-era" in which a conservative court routinely struck down labor, health and safety laws in the early 20th century. In the words of Robert Bork (no liberal he), Lochner is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." No one in the Senate is more responsible for Brown's confirmation to a lifetime seat on the all-important DC Circuit Court of Appeals than John McCain, a fact he touts on the campaign trail.

McCain was also more than willing to rough-up President Clinton's judicial nominees. McCain missed many important votes on Clinton nominees in 1999 and 2000 while campaigning for the White House. But he was present in 1994 and was among just 12 Senators to support a filibuster of Judge Lee Sarokin, a nominee to the Third Circuit Court of Appeals who was rated unamimously "well qualified" by the ABA (the highest possible rating). McCain's decision to side with the likes of Jesse Helms and Strom Thurmond in this vote, and against Orrin Hatch and Trent Lott speaks volumes.

Indeed his support for the Sarokin filibuster is probably why he joined the Gang of 14 Deal. This Deal preserved, in diluted form, the ability of Senators to filibuster judicial nominees. It was agreed to by 7 Democrats and 7 Republicans (including McCain) in 2005, preventing then-Republican Majority Leader Bill Frist from eliminating the filibuster via a rules trick Trent Lott dubbed the "nuclear option" (because of the meltdown it would have caused in the Senate). McCain's participation in the Gang of 14 Deal is often cited as evidence of McCain's moderation, or among the Coulters of the world, his willingness to capitulate to the left. The reality is that it is simply an example of John McCain being consistent: since he had supported past efforts to block Clinton nominees via the filibuster, he wasn't in a great position to argue that Democrats should be prevented from using this tool.

Equally unconvincing is the argument by the talk radio crowd that, as part of the Gang of 14 deal, McCain threw other "fine nominees... under the bus." The two judges who were effectively denied confirmation by the Gang of 14 deal -- William Myers and Henry Said -- had serious ethical issues. Myers, a former Interior Department Solicitor under Gale Norton, was affiliated with the Jack Abramoff crowd that McCain investigated for defrauding Native American tribes . Said had issues in his FBI folder. Even if it accurate to blame McCain for preventing these nominations from coming to a vote -- a dubious proposition -- it confirms only McCain's good-government streak.

No one thinks John McCain would nominate ethically-challenged judges. But there is every reason to think that he will nominate ideological conservatives to the Supreme Court and lower federal courts.

This is important because federal courts are already dominated by Republican appointees. Seven of the nine Justices, and a sizeable majority of lower federal court judges were appointed by Republican presidents. With the Courts' liberal/moderate judges on average 15 years older than the Court's conservatives, John McCain in the White House could easily deliver the Court to the right wing for a generation.

The far right clearly understands this, which is why they have forced McCain to profess ever more stridently his devotion to their Supreme Court cause. As I've argued in more detail here, it's troubling that progressive and moderate voters seem to care so much less about this critical issue.

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