Is Senator and Presidential Candidate John McCain Soft on Judges? A Closer Examination of the Basis for these Charges

By CARL TOBIAS

Tuesday, Feb. 05, 2008

Conservatives are currently engaged in an unrelenting attack on Senator John McCain for being, in their eyes, too liberal. One prominent area in which conservative critics have vociferously attacked McCain concerns the appointment of federal judges. Because McCain is now the clear Republican frontrunner, his judicial selection record deserves analysis to ascertain whether the candidate is, indeed, soft on judges, as his criticsargue.

McCain certainly has dutifully recited the right-wing Republican Party litany about federal judicial selection, which every serious Republican candidate is required to repeat. For example, hehas remarked that"one of our greatest problems in America today is justices that legislate from the bench" and has lauded President George W. Bush for appointing justices "who strictly interpret the Constitution." McCain has concomitantlypromised to nominate judges who interpret the Constitution and statutes, not legislate from the bench, make social policy or adopt the role of judicial"activists."

McCain has also taken the obligatory pledge to nominate Supreme Court Justices who resemble Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. When some conservatives pounced on McCain for having the temerity to suggest that Alito "wore his conservatism on his sleeve," McCain reverted to the party line: " I've saidas often as I can, that I want to find clones of Alito and Roberts." Yet criticisms of McCain's views on federal judges continue. Why?

The Criticism Based on McCain's Bipartisan Efforts Regarding Federal Judicial Nominations

One criticism frequently leveled at McCain is that he had major responsibility for creating the reviled "Gang of 14" -- the group of Senators whose 2005 action prevented the Republican majority from igniting the so-called "nuclear option," which would have eliminated filibusters for judicial nominees. McCain's detractors conveniently appear to have forgotten, however, that this effort also guaranteed that the Senate did not filibuster Justice Alito, thus adding a solid conservative to the Supreme Court.

Theinitiative alsofacilitated the expeditious confirmation of numerous conservative judges, including several darlings of the right: The U.S. Court of Appeals for the D. C. Circuit's Judge Janice Rogers Brown, the U.S. Court of Appeals for the Fifth Circuit's Judge Priscilla Owen, and the U.S. Court of Appeals for the Eleventh Circuit's Judge William Pryor.

McCain has also more generally been criticized for pledging to reach across the aisle and work with Democrats, a phenomenon illustrated by his participation in the Gang of 14. However, that kind of activity might indicate qualities that conservatives will favor in the long run. Should Democrats capture the White House and increase their Senate majority this November, conservatives will be grateful to McCain and the Gang for their ability to filibuster nominees whom they consider unacceptably liberal. Moreover, McCain's history of reaching across party lines will enable the minority Republicans to engage in constructive judicial selection.

A Key Example of Why McCain's Bipartisan Approach Will Benefit Conservatives

An illuminating example is that of the U.S. Court of Appeals for the Fourth Circuit, which has long been considered the most conservative appellate court in the nation. President Bush continuously re-nominated several individuals whom the Republican Senate had clearly stated it would not confirm; steadfastly refused to consult with home-state senators, even GOP politicians, about candidates; and persisted in submitting nominees who were not consensus candidates. This stubborn intransigence means that five of fifteen judgeships are now vacant on the Fourth Circuit, which has made the court less conservative. Indeed, the tribunal currently has five judges who received appointment from Republican presidents, and five from Democrats. Notwithstanding whether the Senate confirms judges for any of the five vacancies in the next year, President Bush's inflexibilityhas beendirectly responsible for allowing the court to become more liberal. In contrast, a bipartisan approach like McCain's might have filled all the vacant seats, maintained cordial relationships with home-state Senators from both parties, and kept the Fourth Circuit solidly conservative.

In sum, while Senator John McCain might not be as conservative on some issues as numerous right-wing Republicans may like, examination of McCain's record on federal judicial selection reveals that conservatives have little about which to be concerned.

Indeed, McCain, if elected president, might actually remedy or ameliorate the charges and recriminations,the divisive partisanship and the incessantpaybacks that have troubled the appointments process. He will likely do so through cooperation with Democrats, who will probably increase their Senate majority, and thus save Republicans from being marginalized and ensure they retain power. These are outcomes to which even the strongest conservative should subscribe.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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