The Wall Street Journal-20080130-Judging John McCain
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Judging John McCain
Full Text (1114 words)What if campaign finance reform was more important to conservative voters than abortion? If that sounds improbable, have another look at the judicial nomination gauntlet soon to be faced by Sen. John McCain. Despite a pro-life voting record, conservative court watchers are questioning whether he could be trusted to fill seats on the Supreme Court.
The Republican candidates have all said they want judges who will strictly interpret the law. But the conservative base is beginning to mutter loudly about how Mr. McCain's competing priorities could threaten his ability and willingness to push solid nominees past a Democratic Senate.
The issue came to a froth on Monday over a WSJ.com piece by John Fund that quoted Mr. McCain saying he would be more inclined to nominees like Supreme Court Chief Justice John Roberts than to Justice Samuel Alito, who "wears his conservatism on his sleeve." Mr. McCain responded quickly, insisting that he was a great supporter of Justice Alito's confirmation, and that he'd like to clone both of the new justices, presumably for use in future vacancies.
The strength of the response attests to the importance of the judges question at this stage in the race. While Mr. McCain has listed the names of justices he admires on the trail before, he has generally steered clear of the courts as a major topic.
In states like South Carolina, he preferred to invoke his pro-life voting record -- and the tactic seems to have paid off. He won the state with around 27% support from evangelical voters, according to CNN exit polling. In Florida, he won endorsements from a coalition of pro-life and value voters, and campaigned hard in evangelical strongholds near the Georgia and Alabama borders.
The problem for Sen. McCain is that the justice train runs straight through the middle of McCain-Feingold, a sore point for many judicial conservatives. The landmark campaign finance law, officially known as Bipartisan Campaign Reform Act of 2002, is one of the Arizona senator's proudest achievements, one he would presumably seek to protect if it was within his power. But the namesake law, which aimed to take the money out of politics, has created restrictions on political speech that most conservatives -- and conservative judges -- find unconstitutional.
Over the past few years, the law has faced challenges at the Supreme Court, most recently before the Roberts court last term. In Federal Election Commission v. Wisconsin Right to Life, the Supremes stopped short of overturning their earlier decision upholding the law in the 2003 case McConnell v. FEC. But with Justices John Paul Stevens and Ruth Bader Ginsburg thought to be considering retirement, the makeup of a future court would presumably shift under a "conservative" president in a direction that could prove fatal to Mr. McCain's proud handiwork.
That's a salient question for "values" voters, not because of McCain-Feingold itself, but because of its potential role as a litmus test. Few "strict constructionist" judges would vote to uphold it, so evangelicals who may like Mr. McCain's legislative record on abortion worry nonetheless that his attachment to campaign finance regulation may get in the way of nominating properly conservative judges.
The impression that a President McCain might go wobbly is furthered by the senator's participation in the Gang of 14, a bipartisan group of lawmakers who agreed to prevent either party from filibustering judicial nominees except in "extraordinary" circumstances. Mr. McCain has said he is proud of a strategy which helped get many of President Bush's nominees on the bench, and eased the way for the confirmations of new Supreme Court Justices Roberts and Alito. But the compromise had a price, infuriating many conservatives as an unnecessary and pre- emptive capitulation to Democrats. The great fear among conservatives today is that President McCain would nominate a consensus candidate, in the mode of David Souter or Anthony Kennedy.
At a meeting of the Federalist Society in November 2006, as the presidential campaign engines were heating up, Mr. McCain went out of his way to remind the group of his support for conservative judicial nominees like Janice Rogers Brown. Before the nomination of Samuel Alito, Mr. McCain also said he was sure President Bush would nominate someone who "shares his conservative philosophy." The question is, how conservative is Sen. McCain's philosophy, when many consider him the legislative equivalent of Sandra Day O'Connor.
Other elements of Sen. McCain's visible judicial philosophy also trouble conservatives, most notably his views on international law. His broad interpretation of the Geneva Conventions set him at loggerheads with the Bush administration back in 2006, as did his outspoken views on interrogation, seen by some court watchers as bespeaking an undue deference to international law and overseas legal opinion.
Certainly, Mitt Romney is not without his own problems. Aside from his mid-term conversion on the abortion issue, he faces his own little-explored set of obstacles stemming from his judicial record in Massachusetts. His appointments as governor, for instance, have yet to get an airing. In 2005, the Boston Globe noted that Mr. Romney had a habit of passing over conservative lawyers for his appointments of judges or clerk magistrates. Of the 36 people he elevated, more than half of them were either Democrats or independents with a habit of donating to Democratic candidates.
Asked about those numbers at the time, Mr. Romney said: "People on both sides of the aisle want to put the bad guys away." Fair enough. The criteria for lower court judges can be different than the higher courts, where Mr. Romney has said he would be committed to strict constructionists. But Mr. Romney's tendency to swap principles when politically convenient will leave some judicial conservatives unreassured.
Anyone who doubts the power of the right when offered an undefined judicial candidate need only refresh themselves on the fate of Harriet Miers. President Bush's chief counsel and trusted confidante ultimately withdrew her nomination to the Supreme Court after an outcry from conservatives who refused simply to take Mr. Bush's word that she was one of them. Likewise, Messrs. McCain and Romney at some point will have to lay their cards on the table.
For Mr. McCain, the judges issue may even offer an opportunity to start winning back the confidence of a skeptical conservative base. The debate is not exclusively about Roe v. Wade but about several signature "maverick" positions which have alienated Republicans in the past. Most of all, he should say that while he has his own opinion about the wisdom of campaign finance reform, he will go to the mat for strict conservative judges without any McCain-Feingold litmus test.
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Ms. Levy is a senior editorial writer at the Journal, based in Washington.
