In this morning’s NRO editorial, the editors write that Senator McCain “can reassure conservatives if he … identifies respected conservative legal figures to whom he will turn when nominating judges.” I am wondering what the rationale is for supposing the Senator could do that in a convincing way.
McCain’s signature legal issue is campaign finance reform. As a class, conservative legal figures reject this initiative as an unconstitutional curb on political speech (i.e., the speech it was the First Amendment’s principal purpose to protect.) As demonstrated in last term’s case, Federal Election Commission v. Wisconsin Right to Life, it is the liberal bloc of the Court (Justices Stevens, Souter, Ginsburg, Breyer) which adopts McCain’s position. Justices Scalia and Thomas (along with Justice Kennedy) appear poised to reverse the Court’s 2002 McConnell decision that upheld McCain/Feingold; Chief Justice Roberts and Justice Alito, though not yet willing to go that far, ruled it unconstitutional as applied and signalled a willingness — if appropriate in some future case — to, as Justice Alito put it, “reconsider the holding in McConnell” that the law “is facially constitutional.”
McCain is certainly not going to reverse himself on campaign finance reform — indeed, he filed amicus briefs in the Wisconsin Right to Life case and continues to regard this regulatory scheme as critically important. He made his constitutional views quite clear, arguing, for example, that ”the discussion of political policy generally or advocacy of the passage or defeat of legislation is entitled to no greater protection under the First Amendment than advocacy of the election or defeat of candidates for federal office.” (Citations and internal quotes omitted.)
So my questions are (a) are there really lots of respected conservative legal figures who would flock to McCain; (b) even if there are, does anyone really think a President McCain would appoint to the Supreme Court a justice who is likely to reverse McConnell; (c) shouldn’t we assume that a justice who is likely to uphold McConnell would be one who, philosophically, inclines toward the liberal bloc of the Supreme Court rather than Justices Scalia, Thomas, et al.; and (d) given that Sen. McCain went to the trouble of explaining his views on constitutional interpretation in Wisconsin Right to Life, don’t the editors think conservatives should rely on McCain’s own words — rather than anything he’d tell us about who his advisers would be — in anticipating what sort of judges he would nominate?