[W]hat McCain reportedly said makes no real sense, given that (1) McCain neither knows nor claims to know much about courts and the Constitution, and (2) Justice Alito was never seriously believed to be more conservative or even more overtly conservative than John Roberts. It's also worth pointing out—as did professor Stephen Bainbridge—that McCain has been solidly pro-Alito from day one.But Lithwick says it doesn't matter whether McCain cared about some distinction he thought he saw between Roberts and Alito:
[W]hen McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito. The only thing that really matters now is that McCain has already agreed to fall in line.I'm sorry, Dahlia, but that doesn't make sense to me. McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.
In fact, I think that is the line he probably perceived between Roberts and Alito — if he said what he's reputed to have said. I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.
But this is not a criticism of McCain. It makes me more willing to trust him to pick judges. I think Lithwick, on the other hand, would like moderates and liberals to turn away from McCain. She portrays him as an instrument of a monolithic conservative "institutional structure that has become the only game in town," because — I suspect — she wants us to vote for the Democrat.
This makes me want to look back to one of the conference calls McCain did with bloggers, in which I asked him about Supreme Court appointments:
I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."I wish I'd written more at the time, but if I recall correctly, he kept going back to the idea of "strict constructionism," and I could not get him to break that down into any preference that had to do with outcomes. It's safe but opaque to assert that you want judges who won't legislate. Virtually every judge will insist — and probably even believe — that he or she does not legislate and properly says "what the law is."
Yet this idea of appointing a justice with "knowledge of the world" suggests that he would favor judicial minds that are more flexible and pragmatic and not woodenly ideological. And perceiving a line between Alito and Roberts is about exactly the same thing.