There is much to respect in Sen. John McCain’s address on the judicial-selection process, delivered at Wake Forest University on Tuesday. There is also much to question. In discussing the philosophy that would guide his selection of Supreme Court justices and lower-court judges, McCain sought to reinforce a conservative base that accepts him as their standard bearer but views him with a well-earned skepticism. McCain’s words should comfort conservatives, but, measured against his actions, will require significant reinforcement to be believed.
McCain sounded all the right notes for a candidate seeking to reassure conservatives that he can be trusted on judicial selection. He cited some recent, well-trodden judicial horror stories, like Justice Kennedy’s decision in Roper v. Simmons, where the Court relied on unratified treaties and “the opinion of the world community” to conclude that the U.S. constitution somehow prohibited the execution of a 17-year-old cold-blooded killer. McCain recognized that Roper and similar decisions “disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.”
A comforting thought, but not exactly a heavy lift. Like their predecessors in prior elections, GOP candidates from Mitt Romney to Rudy Giuliani discovered that the easiest applause line on the stump came from promising to combat judicial excesses. It is not difficult to spot those excesses when they occur. McCain knows an easy mark when he sees it.
Keeping with that theme, McCain explained that judicial restraint would be a key characteristic in his appointments. He “will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.” His nominees, he added, “will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power.” He pointed to Chief Justices Roberts and Rehnquist as well as Justice Alito as models for his selection criteria. His mention of Alito was designed to quell fears that arose as a result of reports — denied at the time — that he had previously criticized Alito for wearing his conservatism on his sleeve.
In short, he hit the right notes. But it is not that hard a song. Nobody expects John McCain to say that he will appoint nominees who misunderstand the clear limits on the scope of federal power or that he will model his nominees on Justices Ginsburg and Souter.
McCain’s problem is not that conservatives doubt that he is a man of his word. It is a fair bet that McCain means what he says. McCain’s problem is that there is a significant question that he understands how to fulfill the promise that he has made. His actions in the last several years leave doubts about the judgment he will bring to bear in selecting nominees to the bench.
First, conservatives question whether McCain himself understands the Constitution. McCain noted that politicians “sometimes contribute to the problem” of a politicized judiciary, “abdicating responsibility and letting the courts make the tough decisions for them.” McCain is no stranger to abdicating his oath to defend and protect the Constitution. His relentless pursuit of federal regulation of campaign finance — a micromanagement of the most fundamental of First Amendment rights, the right to participate in the political process — demonstrated a tin ear on first principles.
Driving to work one day, I heard McCain tell Don Imus that he “would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt.” He later recanted that statement, but his respect for “quote First Amendment rights” left those who care about those rights scratching their heads. While the Court upheld a facial challenge to the McCain-Feingold statute, it later invalidated the application of a fundamental part of the statute in a challenge brought by a pro-life group seeking judicial permission to run advertising before an election. (A major full-disclosure caveat is warranted here: I defended the law in court. I was the Department of Justice lawyer who first stood in the well of the court and promised a vigorous defense of the statute, and we won that case. The point is not that it couldn’t be defended in good faith, but that a much different standard should be applied in deciding whether it should be enacted in the first place.)