Bench Memos

NRO’s home for judicial news and analysis.

McCain’s Alito Problem


Jim Geraghty asks, elsewhere on NRO, regarding the story about John McCain saying that as President he would appoint Justices like John Roberts but not Sam Alito:

“[I]f a potential GOP presidential nominee said that he was kind of iffy on Alito, one of the few true clear-cut victories for conservatism in recent years, wouldn’t you think that by the time McCain finished the following sentence, everyone in the audience would have already typed into their Blackberries, “U WON’T BELIEVE WHAT McC JUST SAID” and begun preparing their furious denunciations? Wouldn’t the conservatives who heard it be knocking people over in order to get in front of a camera to rip McCain for saying that? Or was this some odd crowd of conservatives who thought Alito was crassly vocal in his conservatism?”

This requires an answer.

1.  If the meeting was (as described) small and private, it was not the kind of forum with any “audience” who would type into their Blackberrys.  Moreover, comments at most such meetings are “off the record”:  participants agree specifically not to run out and tell the media what was said.  And if the participants were conservatives, I would expect them to be men and women who would honor such a commitment.  THAT is why we have not heard about it in the press.

2.  Conservatives who care about nominations of judges who practice judicial restraint are, constitutionally, restrained people themselves.  They do not trample each other to get in front of TV cameras.  You are thinking of some other crowd.  I would expect that folks who heard McCain say such a thing would be deeply disappointed, but not terribly surprised.  I would further expect them to express dismay among themselves, but not run to the media about it.

3.  Most important, the one thing certain in all this is that you will not find a single “conservative” who is in any way educated on the matter of the Constitution and the courts who thinks Justice Alito is “crassly vocal” about political matters or anything else.  He is a “judge’s judge”:  fastidiously impartial, rational, intellectual, and apolitical.  Personally, he is a restrained and modest man — all the more admirable given his prodigious intellect and legal talents.  It is regrettable that such a hypothetical regarding Justice Alito would even be suggested on NRO.


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