George Will's Question for Clinging Conservatives
By AndrewHyman Posted in Analysis and Predictions — Comments (3) / Email this page » / Leave a comment »
George Will wrote on June 27:
The more McCain talks -- about wicked "speculators," about how he reveres ANWR as much as the Grand Canyon, about adjusting the planet's thermostat, etc. -- the more conservatives cling to judicial nominees as a reason for supporting him. But now another portion of his signature legislation has been repudiated by the court as an affront to the First Amendment, and again Roberts and Alito have joined the repudiation. Yet McCain promises to nominate jurists like them. Is that believable?
Yes, it's believable. The Supreme Court's recent decision in Davis v. FEC struck down a small portion of the McCain-Feingold Act. The so-called "Millionaire's Amendment" was not part of the original legislation, and was merely added during floor debate in order to get some more votes. McCain knew that some parts of McCain-Feingold would be held unconstitutional, which is why he opposed a non-severability provision that would have gutted the whole Act if any part is deemed invalid.
Even if SCOTUS shoots down more of McCain-Feingold, McCain has said unequivocally that "1) he was and is committed to supporting Justices Roberts and Alito and 2) McCain-Feingold would not be a litmus test for the justices he appoints."
And if George Will wants judges to strike down McCain-Feingold, the last person he should want in the White House is Senator Obama. All of Obama's model justices (Breyer, Souter, and Ginsburg) voted in Davis v. FEC in favor of the constitutionality of McCain-Feingold.
UPDATE: Here's a June 28 article in The Politico about how conservatives view McCain on judicial nominations.
FWIW,
by helveticus
I don't believe McCain would be too likely to nominate a Justice who he knew would strike McCain-Feingold or who had a long record of string CFR laws on the apellate level.
Fortunately, there really aren't too many potential nominees who fit that description.
And lets be honest, McCain is no legal scholar. If his AG and people like Brownback, Graham, Kyl, Coburn, Ted Olson, and the usual voices on the right all back Judge X, he'll support him or her.
As for Obama, his record is clear. He will appoint more Souters and Ginsburgs. His SG would have filed a brief in favor of the DC ban and would have argued for the petitioners if he was President instead of Bush. His SG will file a brief AGAINST the incorporation of the 2nd Amendment when the Chicago gun ban gets to the Court, and his SG will argue on behalf of the city during oral argument. McCain's SG will do exactly the opposite. McCain's SG will argue for the reversal of Roe/Casey, Bakke/Grutter, Atkins/Roper/Kennedy, Rasul/Hamdan/Boumediene if those cases get to the Court. Obama's will take the other side.
For anyone who cares about the SC there's really no argument. If McCain wins and is able to replace Stevens or Ginsburg with a conservative(or even better both of them), the SC will be solidly conservative for the next 25 years, numerous disastrous liberal precedents will fall, we'll see a conservative version of 1961-1973 and we won't lose a single important case for the next generation.
If Obama wins, we stay where we are with Kennedy deciding every case and us praying that Scalia can hold out 4-8 years until another Repiblican is elected.
The choice is clear.
Rock--
by Classic
I hope you're right. McCain's worst nominee would be far better than Obama's best. But we have to remember that the Dims will control the Senate and make it difficult to get a quality conservative through the confirmation process. On the other hand, maybe the public will rise up and get people like Tester, Nelson (Neb.), and maybe a few others to do the right thing for their own itnerests.
That Obama will nominate more Souters and Ginsburgs to SCOTUS. McCain as president will be solid enough on other issues (such as the war on terror) that he's not going to get squishy on judges just to preserve his pet legislation.