Bruce Bartlett makes some sobering arguments (over at WSJ, linked to Benchmemos by Jonathan Adler) against the prospects for conservative enhancement of the Supreme Court during a McCain administration. One of them is unanswerable: what “assurance” can conservatives obtain that even a “conservative” nominee won’t turn out like John Paul Stevens (or, one could add) like David Souter or Anthony Kennedy? If by “assurance” one means a guarantee, the answer is “none.” But if by “assurance” we mean as much confidence as one can reasonably expect to possess about what anyone will do in the future, based upon what he or she has done before, the answer is: “enough”. McCain has made quite clear that he feels conservatives’ pain over Kennedy’s betrayal. He signalled this recognition in his big judges’ speech at Wake Forest, when he spoke pointedly of nominees with a proven track record, etc. “Enough” assurance presupposes, I should add, that conservatives keep President McCain’s feet to the fire, as they did so forcefully when Harriet Meirs nomination was announced.
Bartlett’s arguments are otherwise unconvincing. He notes that the difference between McCain and Obama is clear from their different votes on Alito and Roberts. But he does not explore the implications of these votes and their outcomes. Obama lost both contests, voting each time with a veto-proof minority of his colleagues. So, it is McCain and not Obama who has the sense of the Senate on judges — and the sense is that Roberts and Alito are confirmable. The most obvious lesson is that, if McCain nominates more Alitos and Robertses to the Court, they will be confirmed. The obvious lesson may, of course, be incorrect or implausible. But, given the recency of these episodes and the near-certainty that, if Providence vouchsafes us a McCain Presidency there is zero chance that there will be 61 Democratic Senators, the burden of persuasion rests upon anyone (such as Bartlett) who says the obvious lesson is unsound. Bartlett does not explain why the politics of the Roberts/Alito battles have changed dramatically. He talks instead about the difficulties of Reagan and the first Bush. And, contrary to Bartlett’s assertion, there are enough “Alitos”and “Roberts” left for McCain to choose from. After all, we do not need a platoon of them, or even a squad. One or two will suffice.
Bartlett says that Obama has said “little” about the kind of persons he would appoint to the Court. I am not sure what counts as a “little” (or a “lot”) in such things. But I am still sure that Bartlett is wrong. For one thing, Obama has said enough specifically about judges to show that he is stumbling, and quite badly. He seems to be grasping for an account which is both moderate and progressive, but which also promises red meat to his core constituencies. But he has satisfied no one so far with his “philosophy” (sic) of constitutional interpretation by courts.
Second, consider the distinguishing feature of Obama’s judicial “philosophy”: he wants the occasional decision to be rooted in his — Obama’s — broader (non-legal) values. He wants only judges who share these Obama-values. And so every time Obama takes a position on some important political question which either is or could be a constitutional issue — abortion, same-sex marriage, vouchers, religion in the public square, affirmative action — he is perforce telling us something about who he will appoint to the Supreme Court. This gives McCain a pretty big target to shoot at, and he should fire away.