McCain and Judges

Federalist Society founder Steven Calabresi co-authored a column for the Wall Street Journal in which he opines that John McCain would do a better job picking strict constructionist judges than Mitt Romney. This is an important endorsement from someone with a long record of promoting the rule of law and opposing judicial activism; it should reasssure the conservative base if McCain gets the nomination.

Like many conservatives, I was troubled about McCain's role in the "Gang of 14." That did not seem to bode well for the type of judges he might appoint. So I was particularly interested in Calabresi's take on that issue:

Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

Conservative complaints about Mr. McCain's role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.

The Federalist Society web site asked the candidates to state their philosophy on judicial selection. McCain's response likewise reassured me that he will appoint strict constructionist judges:

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

McCain's voting record reveals that he is not a recent convert to the ideals of the Federalist Society; he voted to confirm Judge Robert Bork. In arguing that he would only appoint judges who respected federalism and seperation of powers, McCain noted:

This is not a new position. I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.

When the next president is sworn in, six members of the Supreme Court will be older than 70 years of age. As Sloane writes (below), conservatives need to suck it up and vote Republican -- regardless of the name of the nominee.

McCain makes a convincing case that he would be a superb Commander-in-Chief, and that he will appoint judges who understand that their job is to interpret the law, not invent it. To be sure, these are not the only tasks of a president, but they are two of the most important.