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.)
Second, and perhaps more important if McCain can be taken at his word, there is a significant question whether McCain understands the game. Democrats clearly understand the stakes. Their political agenda depends on the complicity of federal courts. To the Democratic leadership, the courts are simply an extension of the political branches, and the obstruction of judicial nominees who believe in a limited judicial role is thus a critical tool in their arsenal.
McCain touts his central role in the “Gang of 14” senators as evidence of his ability to reach across the aisle to overcome that obstructionism. McCain even brags that Chief Justice Roberts and Justice Alito would not have been confirmed without that bipartisan agreement. McCain’s oft-repeated, self-serving claim that he is responsible for the confirmations of those Justices is highly doubtful. More likely, their impeccable qualifications and polished performance in confirmation hearings led to a significant public support that made it impossible for Democrats to oppose them without paying a price at the polls.
McCain’s participation in the Gang of 14 did briefly relieve a logjam with respect to some lower-court nominees, but not without cost. A number of well-qualified nominees effectively met their demise. Through the unilateral action of a few renegades like McCain, the Republican majority traded their one remaining threat to end Democratic obstruction — the so-called nuclear option that would have amended Senate rules to end filibusters of judicial nominees — for a temporary ceasefire with respect to a handful of nominees.
As soon as Democrats took control of the Senate, the Gang of 14 was pushed aside. The result is that confirmation of President Bush’s judges has come to a virtual halt, especially in critical courts of appeals. While President Clinton had 15 of his circuit-court nominees confirmed by a Republican Senate in his last two years of office, President Bush so far has had seven. Only one circuit-court nominee has been confirmed this year. The key question to ask now is: What good is McCain’s membership in the Gang of 14 now that Democrats control the Senate? Not much.
McCain has to learn that Democrats should not be rewarded for obstructing judicial appointments. And it is a lesson that has not entirely sunk in with the current administration, either. For the last several years, Michigan senator Carl Levin had effectively blocked President Bush from filling two vacancies in the Sixth Circuit Court of Appeals because Republicans had blocked the appointment of Helene White, the former wife of Levin’s cousin, to that court during the Clinton years. The standoff was resolved recently when the president withdrew one of his two nominees — sitting Detroit U.S. Attorney Stephen Murphy — and named White in his place. Democrats thus agreed to confirm Bush’s other Sixth Circuit nominee, Raymond Kethledge, as part of a package with White. Around the same time, Bush withdrew his first choice for a vacant seat on the Fourth Circuit in favor of Virginia supreme-court justice Stephen Agee, a nominee backed by Virginia senators John Warner and Jim Webb.
McCain seems to admire this sort of compromise in judicial selection. But it has already bitten Republicans. Shortly after the Michigan deal, Democrats responded to increased Republican pressure on judges by promising three more circuit confirmations by Memorial Day. Election-year politics meant that Democrats could not continue to obstruct the president’s judicial nominees without Republicans gaining a political issue. Republicans pressed for confirmation of three longstanding, superb nominees: former acting attorney general Peter Keisler to the D.C. Circuit and judges Robert Conrad and Steve Matthews to the Fourth Circuit. The Democrats have a different idea, however. While Keisler’s nomination has been pending for nearly two years without a Judiciary Committee vote, Democrats instead scheduled a quick hearing for Agee and plan to meet their Memorial Day deadline with Agee (a candidate forced upon the President by Senator Webb), White (a Democrat sponsored by Senator Levin), and Kethledge (an honest-to-goodness conservative). A one-for-two package for the Democrats: some compromise.
McCain’s speech is certainly a welcome step in the right direction. But he has miles to go to fulfill the promises made. He is no doubt correct that he is better equipped than his Democratic opponents to appoint judges who respect their limited role in the constitutional scheme. We only hope that he is equipped to handle the challenges that accompany his selections.
– Shannen W. Coffin is a partner in a Washington, D.C. law firm. He previously served in high-ranking legal positions in the Bush administration.