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Tuesday, January 29, 2008

McCain, judicial nominations, sleeves, and warts

I don't much care about Wall Street Journal political reporter John Fund's report yesterday that's roiling the blogosphere and cable news talking head shows. Fund reported that Sen. John McCain "has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because 'he wore his conservatism on his sleeve.'"

Since Sen. McCain led a gang of other Republican renegade senators in deserting their party's sitting president and colluding with the opposition party to throw some of that president's pending judicial nominations down the toilet — jettisoning along with their confirmation chances the chance for a constitutional showdown that could have ended senatorial filibustering of judicial nominees — there is nothing that Sen. McCain can do, and certainly nothing he can say or write as a campaign promise, to restore his credibility with me on the subject of judicial appointments.

Oh, yes, he did vote to confirm Roberts and Alito. But could we possibly set a lower bar than that for someone who's supposed to be a leader of his party and a contender for the opportunity to fill as many as three SCOTUS seats in the next term?

There are a lot of good things that can be said about Sen. McCain by good conservatives — but not on this issue.

By taking the "constitutional option" (a/k/a "nuclear option" in Dem-speak) off the table, McCain and his fellow "maverick" GOP cronies doomed not only a handful of worthy circuit and district court nominees to non-confirmation, they ensured that the White House would thereafter dare not make any more controversial nominations to those vitally important lower courts. For "controversial nominations," read "demonstratedly and predictably conservative nominations just like Roberts and Alito would have been, but for the higher profile of SCOTUS nominations."

The only way that the Dems could justify stonewalling Dubya's circuit and district court nominations was that the stonewalling happens mostly out of sight, and rarely if ever makes a blip on the general public's radar screens. They couldn't get away with denying a floor vote to a SCOTUS nominee.  But John McCain led the deal that let the Dems guarantee that they could continue to exercise an effective veto on circuit and district court nominations for the remainder of George W. Bush's term, regardless of the outcome of the 2006 elections. The unquestionable result of the Gang of 14's "compromise," as brokered by John McCain, will be two-fold: There will be more judicial vacancies at the end of the Bush-43 term than there ought to be; and such district and circuit judges as have been nominated and confirmed by January 2009 will be mostly bland ones whom McCain's Democratic allies permitted to go through because the Dems couldn't dredge up or even manufacture remotely plausible objections. Some of them will nevertheless turn out to be very fine judges despite their lack of histories around which the Dems could weave their objections. But if your goal is conservative judges, giving the Dems a near-secret and unaccountable veto, which ie exactly what McCain did, is a very, very bad idea.

No sir, the day John McCain led the Gang of 14, he forfeited all of my trust — irrevocably — on judicial selection issues. No ma'am, I don't care what words he mouths now on that subject.

In fact, I'm slightly more inclined to believe Rudy Giuliani's promises about appointing conservative judges than McCain's. Sure, it's contrary to Giuliani's own stance on many social issues; and I'm far from entirely comfortable about Giuliani's campaign promises on this and other subjects. But at least Giuliani hasn't already betrayed this particular trust, and then equivocated about that betrayal. Whereas McCain, whether right or wrong on those social issues, has already shown himself to have no backbone, and to be a willing collaborator with the Dems, specifically when it comes to appointing judges at the circuit and district court levels. (Giuliani's own "collaborator" problems kick in on other issues, like gun control and immigration.)

To the limited extent that I care at all what McCain says now, the mere fact that McCain continues to defend the Gang of 14 deal out-shouts anything else he says. And saying now that he "fought for" the abandoned nominees is just a palpable lie. The way to fight for them was to continue at least threatening to use the "constitutional option." There was no other way to fight for them. There was no other way to even get their nominations to the floor for a vote! To even pretend that those abandoned nominees had a chance once the Gang of 14 struck its deal is comparable to the Brits and French saying in September 1939, "Well, we did still root for the Czechoslovaks after we forced them to give Hitler the Sudetenland last year. Gosh, we really thought they still had a good chance, but we just ran out of time. How could we know he'd go on to gobble up the rest of their country, and Poland too?"

Stepping back and looking at the big picture: Collaborating with the Dems to defeat the Bush Administration's most conservative circuit and district court judicial nominees isn't remotely the same as collaborating with the Viet Cong and North Vietnamese while American POWs (including McCain) were imprisoned. John McCain is not John Kerry, and the Dems are only misguided political enemies of the GOP and conservatism, not profound and literally mortal enemies of western civilization. And I'm sure that in his own mind, McCain has thoroughly rationalized what he did, just like he's rationalized (and now is soft-pedaling) his prior stands on campaign finance reform and immigration. I'm not one of those self-destructive conservative idiots who is going to sit out the 2008 election if McCain turns out to be the GOP nominee. Indeed, if he is nominated — which I still think is unlikely, but I no longer can rule out as a possibility — I'll support him, and defend him, and promote him, and vote for him against whoever the Dems nominate. I will accentuate the positive, for him or any other GOP nominee.

But just don't insult my intelligence by pretending that John McCain is a reliable conservative on the subject of judicial nominations. From the point of view of any knowledgeable conservative, this is one of the huge warts on this particular candidate. And he doesn't have to "wear" that particular lack of conservatism "on his sleeve," because it's a wart that's as plain as his nose. You can secure my enthusiastic agreement that the Democratic alternatives are uglier, that they're practically "all-wart." But quit trying to pull my leg about McCain and this particular subject, okay?

Maybe if McCain is making a SCOTUS nomination, he really will pick another Roberts or Alito. What concerns me, though, is that at best, he'll gladly let the Dems pressure him into packing the circuit and district courts with Kennedys, O'Connors, and occasional Souters. I have no doubt that John McCain would be willing to take on the Dems on matters of national security, even if it means a bloody, long-term dispute. But I also have no doubt that if pressed (and he will be), he would make his picks, and then cut quiet deals left and right, to avoid such fights over judicial nominees below the SCOTUS level. Since he's already abandoned conservative principles and cut a deal with the Dems on nominees to those courts even when the GOP controlled the Senate, why would he possibly stand up to them as president, especially if they continue to control the Senate?

Posted by Beldar at 07:43 AM in 2008 Election, Law (2008), McCain, Politics (2008), SCOTUS & federal courts | Permalink


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(1) charclax made the following comment | Jan 29, 2008 9:32:17 AM | Permalink

My fervent prayer is that if McCain really is the GOP nominee he will choose Fred T. as his veep. Fred would stand as a backstop to any attempt by McCain to slide the judiciary towards the left.

(2) Brad S made the following comment | Jan 29, 2008 10:45:37 AM | Permalink

If I were McCain, I would be defending the Gang of 14, too. Especially considering if the Nuclear Option succeeded, the Democrats would have used their own Nuclear Option to force Bush to withdraw troops from Iraq. Now, aren't you thankful Mitch McConnell and company were able to filibuster THAT?

Sometimes, you have to be saved from yourselves.

(3) Paul McKaskle made the following comment | Jan 29, 2008 12:06:27 PM | Permalink

Do I infer that your position is any McCain appointments will be essentially identical to Clinton's or Obama's?

(4) Beldar made the following comment | Jan 29, 2008 2:24:25 PM | Permalink

Mr. McKaskle: Not at all. To say McCain is not a reliable conservative on judicial appointments is not at all the same thing as saying he's a reliable liberal. Obama or Clinton would appoint clones (for voting purposes) of Ruth Bader Ginsburg, both at the SCOTUS level and at the circuit and district court levels. That would be much, much worse.

I don't want to see another "centrist swing vote" like Kennedy appointed to the Supreme Court, nor do I want to see such judges routinely appointed to the district and circuit benches. But most of last Term's most important rulings that were most gratifying from a conservative viewpoint in fact came about because on those particular cases, Kennedy "swung" to join Scalia, Thomas, Roberts, and Alito. That's one of the key reasons why I'll vote for McCain if he's the GOP nominee, even though I do not support his candidacy in the primary.

Brad S, with due respect, you don't understand what the "constitutional option" (a/k/a "nuclear option") is (or was). It applied only to judicial nominations, and was explicitly based upon, and limited by, the rationale that the Senate has an affirmative constitutional duty under Article II to either give or refuse its advice and consent on such nominations, because by failing to do so, it paralyzes a co-equal branch of the federal government. As it was being proposed, the "constitutional option" would not have ended, or even have affected, the viability of filibustering of legislation, resolutions, treaties, or even non-judicial nominations that require senatorial confirmation (e.g., cabinet heads, joint chiefs, ambassadors). It was only about judges.

The public showdown that McCain and the other GOP members of the Gang of 14 shrank away from was over precisely this: Can the opposition party use the filibuster of judicial nominations as a legitimate tool to block judges who are well-qualified by any objective standard except for their demonstrated past devotion to judicial conservatism, even when that would lead to rulings that the opposition party hates? Or does instead a president have a legitimate expectation that he will at least get floor votes on his judicial nominees, so that voters can readily judge whether he's been true to his campaign promises about what judges he'd nominate, and so that voters can also judge whether the opposition party has been reasonable in blocking them? I believe that most voters understand that picking judges is a vital, essential power of the presidency, and that it ought to be given broad deference — that the Senate's proper role is exactly what the Constitution says, i.e., merely to advise and consent — and that withholding consent solely on partisan grounds is illegitimate. But democracy can't function properly — both checks and balances among the branches of government, and their respective prerogatives under separation of powers, break down — when an extra-constitutional procedure, the filibuster, is used to subvert the proper functioning and public accountability of those branches under the Constitution.

Yes, that may mean that for two years, a strong-minded president making qualified but controversial nominations gets few if any of his judicial appointments confirmed. But then there is a clear record of obstruction, for which the voters can then make the obstructing senators pay at the polls in the next election cycle. That's the constitutional check and balance. It was precisely the fear of that constitutional check, that accountability, that made the Democratic members of the Gang of 14 want to cut their deal, so that their continued blocking of obvious conservative judicial nominees to the circuit and district courts wouldn't become so obvious to their home-state voters. McCain and his fellow GOP mavericks became their enablers. They created the current sad situation where merely the threat of a filibuster is effectively as powerful as a filibuster itself, and acts of opposition that would require marathon sessions and their attendant publicity (if the Senate cloture rules were actually enforced as written) instead stay well off the public's radar screens.

Filibusters in general are solely a creature of tradition and Senate rule, and their frequent use against judicial nominations is solely a product of the last last quarter-century. (For proof of which, look at the confirmation votes of Ginsburg, Breyer, Rehnquist as CJ, and Scalia. Even Thomas and Bork weren't filibustered; although they were opposed with extreme vigor and outrageous tactics, they got floor votes, and the senators made themselves accountable on the record for those decisions rather than hiding behind filibusters.)

And no, I don't think Republicans/conservatives ought to use judicial filibusters either. Had I been in the Senate then, I'd have agreed that Ruth Bader Ginsburg was entitled to a floor vote. And yes, like every other Republican then in the Senate, I'd even have voted to confirm her: she was objectively qualified, and her selection was a valid consequence of the voting public's election of Bill Clinton and refusal to re-elect George H.W. Bush.

(5) Carol Herman made the following comment | Jan 29, 2008 11:45:12 PM | Permalink

Economy's in trouble. Iraq's a disaster! (Maliki HATES Bush's guts. And, all that happened there, is that the arabs took advantage of us. While Bush was supposed to push the Saud's to center stage in the Mideast. At this, I think he failed.)

Right now, Olmert's hanging on. While the politicians in Israel, similar to Ken Starr, think they can dispose of elected presidents/prime ministers. But tend to create "the perfect storms," instead.

Hillary stands a good chance at being elected. While the "insiders" are counting on the Independents, and the cross-over's from the democratic party; to stay in power. (What price Bush?) Dunno, yet.

What if McCain chooses Guiliani? A guy who is running a distant 3rd, "could" be inserted into the veep's slot.

As to what happens when November 4, 2008 rolls around, I'd suggest you hold onto your hats.

ken Starr thought he'd embarass Bill Clinton out of office. But you should see the list! How many congress critters, who backed Starr, ended up out of office, themsleves.

Don't expect commentary.

For some reason, even in Israel (heck, especially in Israel!) ... no one's talking about what really happened in the summer of 2006, when Condi, with instructions from Bush, knifed the Israelis at the UN. (Weakening them like nobody's business. Did you notice how syria picked up a "claim" to the Shaba Farms?)

At some point those chickens will come home to roost. It seems all you need to do is convince 52% of the voting public to "stick it to the republicans."

It's happened before. Warren Harding and Herbert Hoover (one termers, each), ushered in FDR.

And, running John Dewey (a loser in 1944, to a very sick FDR ... again. Against Truman. Well, you know the headline that made Truman laugh!) While the GOP rejected General Douglas MacArthur in 1948. (And, to make sure Truman wouldn't have to face him in 1952, he used the presidency to destoy MacArthur. And, to hand over to the russians, all the benefits of playing with the UN, as the antithesis to the USA.)

Bush just brought putin back to the table.

And, as I've said the economy, weakening, is notice-able ... if you tend to dine out a lot. (Restaurants are losing business.)

The "Perfect Storm." By the way, I think Olmert will survive. And, he's not gonna go spilling any beans. It seems talking tends to disrupt "perfect storms." Which our media no longer knows how to "figure out."

(6) TonyS made the following comment | Jan 30, 2008 7:07:39 AM | Permalink

"No sir, the day John McCain led the Gang of 14, he forfeited all of my trust"? That's to imply that you still retain some "trust" in the other candidates? The only "trust" I put in any of these candidates is mislead, over promise and only partially deliver, if at all. There are two truths coming to the forefront of this campaign, 1) regardless of which candidate wins the nomination on either side and regardless of which nominee wins the Presidency, you are going to get pretty much the same thing, i.e. a watered down version, but progress nonetheless, down the road of the Liberal agenda. If Hilary/Obama win, slightly more progress will be made down that road perhaps, but only for as long as it takes for there to be a backlash and the Dems lose one or both Houses of the Congress. 2) Each presidential election cycle points to the fact that each succeeding election is less "American" in orientation than the previous one due to 60 years of open border policy and run-away globalization of the economy and the work place. That speaks to voter apathy and low voter turnout. Taken together with the fact that the big "G" government has lost credibility with a large segment of the population to effect any real change (border control) or to effectively
respond to crises, (Katrina) we're likely to see a very odd November.

(7) Gregory Koster made the following comment | Jan 30, 2008 12:57:12 PM | Permalink

Dear Mr. Dyer: Glad to see you back again.

Two points:

1. First the "filibuster" that was threatened before the gang of 14 started boring from within was the "soft" variety, i.e., every night at nine o'clock the Senate shuts down, and all the Senators go home to a warm bed (not their own, in Kennedy's case.) The next day, everyone shows up at noon, and the sham battle continues. Had Bill Frist cared, he could have turned this into a "hard" filbuster, in the manner of the 1960s fights against civil rights: the Senate runs 24 hours a day, a filbusterer is speaking every minute, with the opposition waiting to pounce. This didn't happen. Why? You've given some good reasons, but I think there's another one: as Robert Caro demonstrated in Volume III of his biography of Lyndon Johnson, a filibuster is physically much harder on the majority, than the minority. Further, a "hard" filibuster forces everyone to choose, and in a glare of publicity. Why have that when the nice Gang can save you?

2. McCain is on record as saying he would pick clones of Alito/Roberts for his Supreme Court choices. Fine. But I'd like to hear your opinion about whether A/R would vote for McCain's pet legislation, McCain-Feingold? I think that McC-F is an abomination, violating the First Amendment, and that belief colors my opinion that they would vote against it. If I am right, McCain would have to choose: his pet legislation or originalist judges. I think he'd put up liberal judges to protect his legislation, and to whatever roars of outrage come from the right, he'd give his boyish smirk and say "Well, I'm President. What're you going to do about it?"

Like you, my enthusiasm for McCain is nil. I think it likely he will beat my candidate Romney for the nomination. I've toyed with the notion of sitting out the election, but shucks, the GOP didn't learn anything from the fiasco of 2006 (see: earmarks) and I doubt if they'd learn anything just because the electorate used the biggest baseball bat to hit them over the head. Meanwhile, the Islamic gang waits. They are watching, and my bet is that should the Dems win in November, a big Tet style attack comes, giving the President elect all the more reason to cut and run come January.

There is one thing that could make me sit it out: the selection of Vice President. McCain is going to be 72 this year. If he chooses Mike Huckabee as his running mate, I sit out, or maybe even vote for the Dem. A Huckabee presidency is just Jimmy Carter plus pro-life. Your thoughts?

Gloomy thoughts, appropriate for this grey day of snow and slush.

Sincerely yours,
Gregory Koster

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