Last week, ETP spoke with New Yorker scribe/CNN legal analyst/bestselling author Jeffrey Toobin about what a John McCain presidency would mean for the Supreme Court. Toobin predicted that a McCain presidency would likely result in a more right-wing Supreme Court since one or more of the liberal-leaning justices will likely leave the court in the next few years due to advancing years. Toobin based this on the content of the speech McCain quietly gave on May 6th, the same day as the NC/Indiana primary.
Toobin noted this timing ("Successful politicians know how to attract attention, and how to avoid it") and also noted, as he did to us, that the speech consisted largely of "generalities," instead making coded references that signaled his intentions with respect to issues like abortion, affirmative action, and the death penalty. Though the general public may have missed the point, Toobin deciphered those code words and came to one conclusion: "McCain plans to continue, and perhaps even accelerate, George W. Bush's conservative counter-revolution at the Supreme Court."
Toobin's breakdown of the speech is instructive, and illuminating. As someone who watched McCain deliver the speech and was initially dismissive (I emailed a friend: "I don't really think he knows what he's talking about - he hasn't even gotten beyond vague generalities...do we think McCain has a judicial philosophy?"), I can say that I completely missed many of the coded references that Toobin unpacks in his piece (the one I did get was his invocation against judges who legislate from the bench). That, says Toobin, was the point: This speech was carefully-crafted to preserve his "moderate" image while telegraphing to the far-right fringe that he would go the distance.
Might he really be a "maverick" when it comes to the Supreme Court? The answer, almost certainly, is no. The Senator has long touted his opposition to Roe, and has voted for every one of Bush's judicial appointments; the rhetoric of his speech shows that he is getting his advice on the Court from the most extreme elements of the conservative movement.
This speech flew under the radar for a reason; it was meant to, as Toobin says, which is why it barely registered as a blip after it aired (in addition to my post last week, Keith Olbermann and Rachel Maddow discussed it on "Countdown"). As we noted last week, the Court has gotten little to no attention during this campaign, and that's just how the McCain camp likes it. Why? Because, says Toobin, "he knows that the constituency for such far-reaching change in our constellation of rights is small, and may be shrinking....[w]hen it comes to the Constitution, McCain is on the wrong side of the voters, and of history."
After a piece like Toobin's, though, it will remain under the radar? This piece is as stark a warning as it gets, with the in-depth analysis to back it up. Will the press — widely-held to be supportive of McCain — pick this up? Will the media push McCain on this point, and force him to speak in specifics rather than code words? It remains to be seen — so far, the issue has gotten little traction. That matters, of course; where warnings are concerned, what ultimately makes the difference is who listens. Let's hope Toobin is more Paul Revere than Cassandra.
In McCain's Court [New Yorker]
Illustration from the New Yorker