February 8, 2008

Did McCain say he'd pick judges like John Roberts but he draws the line at Samuel Alito?

Dahlia Lithwick examines the question:
[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.


Trooper York said...

Judge Judy?

titusmont said...

What kind of judges would you appoint Althouse if you had that power?

What judicial philosophy would describe your values?

Simon said...

"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."

Yep. You have a full (if not exactly linear) spectrum, from Souter and O'Connor, who are "kinda sorta" legal conservatives in the tradition of the second Justice Harlan, through Roberts and Alito who are very much in the Rehnquist tradition, and up to Scalia and eventually Thomas, who hold down the formalist wing. I'd have to say I expect most conservative Presidents to pick someone roughly along the middle of that axis; a justice like Alito is far closer to "what conservatives want" than is Scalia, no matter what they might say to the contrary (see Kyllo, Booker, Arizona v. Hicks, and so forth).

Trooper York said...

Judge Reinhold.

Simon said...

In terms of specific names - maybe Easterbrook or McConnell would be up McCain's street?

Simon said...

Trooper - it's Reinhard. As in "the writ of."

madawaskan said...

Well you go to the Supreme Court through the Senate that you have.

Perhaps no more Alitos because fickle conservatives thought Burns would be in court by now and that Webb was the "real" Conservative.

So you use what you've got.

I'd send Janice Rogers Brown.

See what Diane does with that- Diane is interesting....

Now that "with military experience" clause sends a shiver down my spine-

Ghee who does McCain know really well that is military/lawyerly-

Oh...please no.

rhhardin said...

Perceived common sense about the Constitution must have a root in the common sense idea of the Constitution, not the deep legal view.

I imagine one can stray from the other, in ways that can be explained, and perhaps corrected from time to time.

As a programmer, I have an analogy. Users know what good features look like; the programmer has a deep and complicated view of what program changes will screw up every future change, and quickly make the whole program unmaintainable. So he puts his foot down about this or that change, but allows others that fit in with some sensible direction.

Once you screw it up, you can't fix it without screwing up a lot of things people like as well.

But that's pretty far from the user's view of programs.

paul a'barge said...

Oh please. Who in their right minds would take seriously anything written or spoken by Dahlia Lithwick?

Bob said...

I think that McCain is on record as saying that the President should "consult" with the senate on judges. I hate to think of the results of such "consultations," since in the past they have given us McCain-Feingold and McCain-Kennedy.

MadisonMan said...

Simon, did you hear that joke go right over your head?

I think Diane Sykes would be an interesting nomination -- simply because she's a conservative from a state with two liberal-leaning Senators who would probably back her nevertheless.

rcocean said...

McCain is pretty easy to read on SCOTUS justices. He has NO - zero - interest in fighting the Senate Democrats to confirm another Scailia/Alioto/Thomas.

He fought to retain the filibuster against Judicial nominees. He has never lead or even been one of the leaders to sustain a Republican nominee. He didn't want to fight against Ginsburg or Breyer.

So he'll cut a Gang of 14 deal with people like Biden/Spectator to get -at best - some kind of consensus moderate aka O'Conner and Kennedy. He'll give Biden what he requested in the past, significant input into the nominee.

Kevin said...

Dahlia Lithwick is a partisan liberal who is hard to take seriously in general and in particular when trying to recommend or not recommend a Republican candidate.

Simon said...

MadisonMan, I was running out of the door when I wrote that, and the penny just dropped. Haha.

As to Diane Sykes, I enthusiastically concur - I had a starstruck moment meeting her last year. I'm a fan - I've been a fan for some time now! I don't think she's written a wrong opinion since she joined the federal bench (although there was one concurrence in an opinion whose name escapes me, about the standing of a realtor association in Illinois that I wasn't sure about), and she's one of the leading standing hawks on the federal bench today, which is a big plus in my view. So nothing (well, very little, at least) would please me more than to see her on the Supreme Court. If we could get a twofer and send her and Easterbrook, even better. But whether they're up McCain's street (which was my point in my comment earlier, I didn't mean to suggest my own favorites) is another matter.

Kevin said...
"Dahlia Lithwick is a partisan liberal who is hard to take seriously in general and in particular when trying to recommend or not recommend a Republican candidate."

Yeah, but I love her writing. Woman's got an undeniable way with words.

Revenant said...

McCain has voted for all the Supreme Court nominees, conservative and liberal alike, during his time in the Senate. It is hard to draw any conclusions about the kind of judges he'd support. Sure, he supported Scalia -- and Ginsburg. Roberts, and Souter. What does that tell us, besides the fact that he feels the Senate should defer to the Executive on judicial appointments?

Simon said...

Revenant said...
"Sure, he supported Scalia --"

As did Teddy Kennedy, etc.; Our Hero was confirmed unanimously with two Senators absent. But the missing two were Jake Garn and Barry Goldwater, for pete's sake, so call it a hundred to nil.

Still, I agree with your point that it's difficult to infer what kind of judges someone would nominate from who they've consented to qua a member of the Senate. That cuts both ways, though - I don't think valid inference can be taken from the gang of 14, for example, about who he'll nominate. That's not a serious concern, it's just one more grievance that some folks have with him that they feel compelled to trot out at every opportunity. Maybe it tells us something about McCain, but not anything useful to this question.

Revenant said...


I think McCain's history shows that he is both ignorant of, and uninterested in, issues of Constitutionality where the law is concerned. So I hear his pledge to nominate the right kind of judges and have to wonder -- how's he going to recognize them?

Simon said...

Rev, do you have any particular examples in mind? I'd go back to the FMA debate for a counterargument (or at least a counterexample); therein, McCain took the position that the FMA violated the underlying principles of Our Federalism, such as subsidiarity. He argued (and his subsequent conduct bore out) that he was supportive of states banning same-sex marriage, but that the federal government shouldn't get involved in such matters. That suggests at least a passing interest in federalism. BCRA is probably the strongest argument against McCain, but even there, McCain argued (both in the Senate and in the Supreme Court) that BCRA did not violate the First Amendment. So BCRA may support the proposition that McCain's understanding of the First Amendment is flawed, but it doesn't support the proposition that he's uninterested in the limits of the Constitution.

The biggest concern that I have with legislators in the abstract running for President vis-a-vis the sort of judges they might nominate is that legislators as a class are self-important blowhards. And as a consequence, they don't like being told that their intent is not relevant to the meaning of a statute, still less that their self-indulgent spewings into the Congressional Record are of no relevance to what courts are supposed to do (consider Sen. Grassley's remarks at the Roberts hearings), thus that legislative history should not be considered. Which is what "the right kind of judges" will tell him when he considers who to nominate. Now, I know that Alito is less hostile to legislative history than is Scalia (see Zedner), and that Roberts and Thomas are relatively sanguine about this issue, but I never said Alito was perfect, and I've never said that Roberts and Thomas are my heroes. ;)

rightwingprof said...

Like Dafydd, I'm extremely skeptical of this McCain-Alito story, which comes solely from anonymous sources, with no definitive statement or transcript -- and makes no sense, given that McCain voted to confirm Alito.

Smells like BS to me.