Bench Memos

NRO’s home for judicial news and analysis.

McCain and the Court


[Full disclosure:  I'm on Governor Romney's "Courts and the Constitution" and "Faith and Values" committees.]   McCain publicly praises Chief Justice Roberts, and Justices Scalia, Thomas, and Alito.  Yes, he voted to confirm Justice Alito.  But simply supporting a Justice for Senate confirmation is not the same as choosing one from the presidential perch in the West Wing, with trusted senior advisers and longtime friends like former Senator Warren Rudman whispering in one’s ear.   Yes, Warren Rudman.  The man who gave us David Souter.   In McCain’s “maverick self” moments, in private discussions, he has given us reason to believe that he will listen to his dear old friend — and current key adviser — Warren Rudman.  McCain says privately that he would not nominate more Sam Alitos to the Supreme Court, because McCain thinks Alito “wears his conservatism on his sleeve.”  This statement is preposterous, because nothing could be further from the truth about Justice Alito.  At the same time, no one ever accused either McCain or Warren Rudman of “wearing his conservatism on his sleeve.”   It is not overstatement to say that the Supreme Court and the future of the Constitution are at stake in the next election.  Republicans must win, yes.  But the right Republican must win.  Because there’s not much difference between a David Souter and a Ruth Bader Ginsburg.  Republicans can nominate bad Justices, too.  Earl Warren, William Brennan, Harry Blackmun, David Souter….the list goes on.     When it comes to Constitution and the Supreme Court, unfortunately, McCain was –and still is — the weakest of the GOP presidential field.  There are many reasons why.  To overcome them, McCain would have to shed his attachments to key advisers, repudiate his prior unconstitutional legislative acts, and come clean about private comments that he’s had a chance to reflect upon and would like to change.  Even if he does all this, it will be hard for conservatives to trust him to uphold the Constitution — which the President, not just the Supreme Court, has an independent obligation to do — and to appoint solid Supreme Court Justices who are committed to principles of judicial restraint and originalism.    McCain could announce a committee of judicial conservatives he promises to rely upon for suggestions of Court nominees.  Maybe announce who his White House Counsel and Attorney General would be.  They will all have to be trusted conservatives, to overcome the specter of Warren Rudman whispering in the other ear.  And the specter of a presidential “litmus test” for justices on support for McCain-Feingold.    


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