Conservatives, “It’s About the Justices Stupid”

The economy is always a pressing issue for any President, but the nomination and appointment of federal judges, especially Supreme Court Justices lives decades beyond any Presidency. –Jay

The conservative movement has made enormous gains over the past three decades in restoring constitutional government. The Roberts Supreme Court shows every sign of building on these gains.

Yet the gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the “Living Constitution” — in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Accordingly, for judicial conservatives electability must be a paramount consideration. By all accounts, Mr. McCain is more electable than Mr. Romney. He runs ahead or even with Hillary Clinton and Barack Obama in the national polls, and actually leads the Democratic candidates in key swing states like Wisconsin. Mr. Romney trails well behind both Democratic candidates by double digits. The fundamental dynamic of this race points in Mr. McCain’s way as well. He appeals to independents, while Mr. Romney’s support is largely confined to Republicans.

With many more Republican senators up for re-election than Democrats, the nomination of Mr. Romney could easily lead to a Goldwater-like debacle, in which the GOP loses not only the White House but also its ability in practice to filibuster in the Senate. Thus, even if we believed that Mr. Romney’s judicial appointments were likely to be better than Mr. McCain’s — and we are not persuaded of that — we would find ourselves hard-pressed to support his candidacy, given that he is so much less likely to make any appointments at all.

In fact, there is no reason to believe that Mr. McCain will not make excellent appointments to the court. On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His pro-life record also provides a surety that he will not appoint judicial activists.

We recognize that there are two plausible sources of disquiet. Mr. McCain is perhaps the foremost champion of campaign-finance regulation, regulation that is hard to square with the First Amendment. Still, a President McCain would inevitably have a broader focus. Securing the party’s base of judicial conservatives is a necessary formula for governance, as President Bush himself showed when he swiftly dropped the ill-conceived nomination of Harriet Miers.

Perhaps more important, because of the success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area. The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party.

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.

Messrs. Calabresi and McGinnis teach at Northwestern University Law School.

McCain and the Supreme Court

By STEVEN G. CALABRESI and JOHN O. MCGINNIS
February 4, 2008; Page A14

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