Not Conservative Enough?
Peg on Feb 04 2008 at 9:55 pm | Filed under: Domestic Politics, Election 2008, Law, Peg's Page
Many Republicans and/or conservatives have been wailing that McCain is not conservative enough for them. No links; loads abound.
The people who complain about this are correct - at least on some topics, IMHO.
But, if you don’t want to vote for McCain because he isn’t conservative enough, consider this.
The gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the “Living Constitution” — in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.
We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.
So. Don’t vote for McCain this fall if you so choose. If you’re in the “I’m going to sit this one out” camp, however, do not blame anyone other than yourself if President Clinton II or President Obama selects Supreme Court judges a bit to the left of Noam Chomsky to serve for a couple of decades.
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It’s a fair point, Peg. And one that, as an attorney, is nearer and dearer to my heart. But I see no evidence that McCain will appoint anyone remotely conservative (i.e. more like Thomas, Janice Rogers Brown, Alex Kozinski, et al.). If you have links to the contrary I’m all … er, eyes, but so far I haven’t seen the evidence.
Michael, you may be correct that McCain would not nominate judges quite as conservative as you would like. On other issues, too, those who complain he is not conservative enough may be accurate.
Yet in my mind, we have to judge reality. My belief is that Romney cannot beat either Obama or Clinton. If my assumption is accurate, then the question is not “Who would McCain appoint to the Court?” Then the question becomes “Will President Obama or President Clinton appoint judges as conservative as those that President McCain would appoint?”
Now, you may think my assessment that Romney cannot win in a general election is incorrect. That is a different ball game.
Nevertheless, that assumption is one of my conditions of contest. And, as such, I think that not voting for McCain is an unwise choice - however flawed it may be.
Let’s assume that Romney can’t win (which I agree with), and that either Hillary or Obama will be making the next appointments. Who will they be replacing?
The obvious candidates are:
(a) John Paul Stevens: aged 87 (turning 88 on 4/20)
(b) Ruth Bader Ginsberg: aged 74 (turning 75 on 3/15)
Both of whom are considered liberal Justices.
The next most likely candidates are:
(c) Antonin Scalia: aged 71 (turning 72 on 3/11)
(d) Anthony Kennedy: aged 71 (turning 72 on 7/23)
One of whom is a conservative and the other a swing vote.
If we play out the prisoner’s dilemma, then I have to conclude that a Clinton/Obama presidency has a much better chance of being a wash judicially than a net gain for the “living Constitution” side.
Moreover, I think that a Clinton/Obama presidency creates a better than even chance of small-government types wielding more power in Congress, thus retarding (somewhat) either Democrat’s chances of getting another Ginsberg on the Court. There’s always the possibility of a liberal’s Souter ending up on the bench.
With McCain, he may appoint somebody closer to whom I think should be a sitting Justice, but I don’t have any confidence that he will do so. I fear he’ll appoint, at best, another Souter (who, while a fine Justice, leans way too much towards the “living Constitution” side of the equation for my taste), and at worst someone as hapless as Miers.
I blame Rudy.
Heh. I was never as jazzed about Rudy as you, but I think he would have been the better option compared to who’s left.
McCain as President isn’t the only voice in the whole Court appointment saga. If there’s a Democratic majority in the Senate, he wont be able to get an ultra-conservative passed (if he were even likely to nominate one.)
More likely, he would appoint someone non-controversial, and fairly moderate. That might still be better then a left leaning judge that the Democrats would probably happily pass for a Democratic President.