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

February 4, 2008; Page A14

7 comments so far

  1. Neil on

    Great title. When it comes to abortion, the first step is getting the right judges nominated. Even if you have pro-life Presidents (Reagan and Bush I) you can lose if they nominate centrists.

  2. matthew on

    I posted this same bit in response to your comment on my Mea Culpa, but here it is:

    Reagan was a conservative. McCain has 20 years in government and a large body of evidence which does not support the idea that everything will turn out “relatively well”.

    Frankly though, I’m surprised that those are your words at the success of your preferred candidate.

    The issue, as I see it, is the quandary faced by conservatives such as myself: the need to save the country as much as possible, versus the need to save the party so it can be a more powerful and effective part of reclaiming the culture.

    In Washington, the Republican party is to a large extent as corrupt and rotten as the Democrats. The difference, the Republican party at least pays lip service to morals, ethics, and standards.

  3. John on

    I’ll vote for McCain in 2008 if the choice is Obama or Clinton v. McCain. If Ron Paul runs as an independent then he will get my vote.

  4. Jay on

    Thanks for the comments everyone.

    I guess I’d like to focus this comment toward Matthew. We both agree that Reagan was conservative, but my sentiment that things went “relatively well” is a reflection of the fact that no single President will ever have what you or I might consider a perfect Presidency. Despite Reagan’s conservative credentials and stances, he appointed at least two “living document”-type Supreme Court Justices. Federal court nominations and appointments are extremely difficult to get “right”. But Reagan tried, and it didn’t work out so well. And I think Neil drives that point home.

    The Democrats won’t even bother trying.

    If Clinton or Obama are ever put in a position to nominate their version of a good Justice (and likely several Justices), the social conservative movement among others will be set back by decades. Potential pro-life leaning nominees and strict constructionists will not even be an option. After that, the next time a perfect GOP presidential hopeful does actually come around, and every time thereafter for the next three or four decades, their conservative administrations will be faced with an unfriendly and maybe even a downright hostile Federal Judiciary.

    McCain vs. the Dems is just not a difficult choice for me. The rotten Republican Party you speak of is one where McCain has clearly been an outsider. I find that refreshing.

    Having said all of that, I don’t put my faith in McCain or any other man. I put my faith in God. I pray that the next President will be led by eternal, moral principles. But the Church is ultimately responsible for evangelizing and changing the heart of a nation and providing the moral compass you speak of regardless of the nation’s politcal leadership.

    The “CHANGE” everyone in the country yearns for is ultimately spiritual, and Christians must vote the best we know how in good conscience and continue to share the Gospel of Jesus Christ with the world around us.

  5. […] will continue to work to secure the nation’s borders without infringing on human rights.  I trust that McCain will continue to work to nominate conservative judges and justices to the Feder….  I trust that McCain will continue to support the new government in Iraq until they can fight the […]

  6. […] Earlier Post: Conservatives, “It’s About the Justices Stupid”  […]

  7. […] It’s About the Justices Stupid & Bill Proposes 50 New Federal Judgeships for Next […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: