Bench Memos

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The “McCain Saved Alito” Meme


In a Christian Science Monitor piece on why conservatives should trust John McCain where judges are concerned, law professor (and non-conservative) Carl Tobias of the University of Richmond repeats uncritically one of our best-known facts that is not a fact: “McCain critics seem to forget that this [Gang of 14] endeavor ensured that the Senate would not filibuster Justice Alito.”

I think John McCain will get the votes of all but the most foolishly petulant conservatives in November.  But let’s be clear.  What ensured that Samuel Alito would not be filibustered was . . . Samuel Alito.  Senate Democrats have always been confident that they could filibuster lower-court nominees under the radar of most public attention–and the Gang of 14 deal had little lasting impact on the prospects for such filibusters, more’s the pity.  But those same liberal senators could always be counted on to lose their nerve when a Supreme Court nomination reached the floor, assuming that the nominee was manifestly qualified for the appointment.  Samuel Alito was as qualified as any nominee in Supreme Court history, and more qualified than most.

John McCain and his thirteen compadres had nothing, absolutely nothing, to do with squelching the possibility of an Alito filibuster.  It would be nice to see this “fact” go away.


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