McCain Makes a Promise About Judges
Stephen Bainbridge believes John McCain will appoint conservative justices to the Supreme Court if elected. He pledged to do so at CPAC last week, and presidents are easier to pressure these days. Remember Harriet Miers?
At CPAC, Senator John McCain promised:
I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people’s elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.
This promise was absolutely critical if McCain was to win over conservatives.
To be sure, Presidents all too often break campaign promises. Remember George Bush 41’s “read my lips” pledge on taxes?
In the new media environment, however, it’s getting easier to hold a President’s feet to the fire. Remember George Bush 43’s aborted nomination of Harriet Miers to the Supreme Court?
Those of us who waged war against Miers succeeded in part because in the 2000 campaign Bush had explicitly promised to nominate justices in the mold of Scalia and Thomas. We demanded that Bush keep that promise and, as it became clear that Miers was made from a different mold, we kept up a steady drum beat of criticism. In the end, we won. Miers was forced to withdraw and Samuel Alito became the newest member of the Supreme Court.
If a President McCain were to nominate a David Souter clone, the right’s netroots would have a collective conniption fit that would make the Miers fight look like pattycake. We might not win, but we’d at least bleed McCain of enough political capital to give even Warren Rudman second thoughts.
All of which suggests that threats by conservative pundits like Rush Limbaugh and Ann Coulter to take their ball and go home if McCain is the nominee make no sense (and I say this as someone who has made similar rumblings in the past). The next President likely will nominate 3-4 Supreme Court justices and 200 to 400 lower court judges. Given the astonishing longevity of Supreme Court justices, moreover, the next President’s Supreme Court picks easily could serve for two or more decades.
To consider the full implications of this prospect, consider just one of the names that appears on most short lists of prospective Democratic Supreme Court nominees: Harold Koh, dean of the Yale Law School. (YLS professor Kenji Yoshino reportedly quipped that he was hedged for 2008, because “either the Democrats will lose and Yale will keep Harold, or the Democrats will win and Yale will loan him to the country.”)
What would a Justice Koh’s jurisprudence look like? Jeffrey Rosen notes that Koh “has supported the idea that U.S. courts should expansively apply international legal precedents without the authorization of the president and Congress.” John McGinnis (.pdf) likewise observes that: “Harold Koh in fact would like to cabin American exceptionalism through the use of transnational materials to assure that American principles would cohere more with the rest of the world.” The increasing use of such precedents by the left wing of the Supreme Court, of course, has been a major irritant to conservatives.
Andrew McCarthy and Doug Kmiec have both raised concerns that a Justice Koh would handcuff the police and intelligence community by judicial fiat. A Law Blog reader quipped that, “other than that he’d be a sure vote for declaring Gitmo detainees have a constitutional right to Social Security benefits, I do not see the appeal.”
On a related point, consider his strong support for keeping military recruiters off the Yale campus. as the Yale Daily News reported, “despite a 8-0 smack down by the Supreme Court in the military recruiting case Rumsfeld v. FAIR, Koh still refused to grant ROTC equal access to the Law School.”
There can be no doubt but that Koh would be a liberal activist of a stripe we haven’t seen since Brennan and Marshall. There can be no doubt that he’ll be at or near the top of the list in an Obama or Clinton presidency.
With the CPAC promise on the record, anybody who thinks John McCain would nominate Koh or anybody remotely near him on the ideological spectrum is suffering from such an extreme case of McCain derangement syndrome that they’re beyond the help of even modern pharmapsychology.
Stephen Bainbridge is the William D Warren Professor at the UCLA School of Law and blogs at www.ProfessorBainbridge.com
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28 Comments
1. progressoverpeace:Uh … enforcement of the law is not the task of our courts. Courts have no powers of enforcement, to speak of, let alone having it as their “sole responsibility”. The job of enforcement is the one that McCain is running for.
Feb 10, 2008 - 12:26 am 2. Mark Stewart:Of course, yes, he SAID he would…
That’s kinda like when he said he would support and defend the Constitution, right?
Feb 10, 2008 - 5:24 am 3. Fatcat:If by some strange twist of fate McCain is elected president, any judges he would nominate would be off a list supplied to him by Ted Kennedy, Lieberman, Boxer, Hitlery, Schumer, etc…
This will be the list of candidates that the Dem controled Senate will allow for nomination and vote for … period.
McLame, being a go-along-to-get-along kind of guy, will do as he is told so as to appease his Dem friends and bolster his bipartisan beliefs.
Most likely McLame won’t even remember his promises he made on the campaign trail as his dementia progresses in the coming years.
Feb 10, 2008 - 6:08 am 4. in_awe:Anyone else remember McCain being part of the gang of 14 that killed any chance of Bush’s judicial nominees getting a fair hearing and approval?
I agree with FatCat – McCain will be more invested in getting his nominees approved by the Dems than in choosing the best nominees to begin with.
Feb 10, 2008 - 8:32 am 5. edward cropper:McCain is less than honest on a number of items. He will not admit to this day that his immigration plan was amnesty, when anyone with the IQ of lent knows good and well is was. He refuses to acknowledge that McCain-Feingold is a serious attack on free speech. He flat out lied about Romney’s comments on a time table for Iraq.
Feb 10, 2008 - 8:32 am 6. edward cropper:Why then should we believe him on judges. McCain doesn’t seem to be in remarkably good health, so there is the real possibility that he will be a one term President. Who is to say he will not get elected and then say screw you right-wing nuts I’m going over to the other side of the isle and you can
pound dirt? Coulter and Rush are not that far off the mark when you consider these possibilities.
McCain is less than honest on a number of items. He will not admit to this day that his immigration plan was amnesty, when anyone with the IQ of lent knows good and well is was. He refuses to acknowledge that McCain-Feingold is a serious attack on free speech. He flat out lied about Romney’s comments on a time table for Iraq.
Feb 10, 2008 - 8:45 am 7. Linda Frank:Why then should we believe him on judges. McCain doesn’t seem to be in remarkably good health, so there is the real possibility that he will be a one term President. Who is to say he will not get elected and then say screw you right-wing nuts I’m going over to the other side of the isle and you can
pound dirt?
“With the CPAC promise on the record, anybody who thinks John McCain would nominate Koh or anybody remotely near him on the ideological spectrum is suffering from such an extreme case of McCain derangement syndrome that they’re beyond the help of even modern pharmapsychology.”
The delusional commenters above are doing a wonderful job of proving Professor Bainbridge’s point.
Feb 10, 2008 - 9:54 am 8. serfer62:So you’re saying that the Maverick MacNasty will cow to conservative outrage? What are you, stupid?
MacNasty would relish another poke in the conservative eye. He’d probably nominate Sen Clinton just to roll in the outrage.
Hey. I have a suggestion. Look at what MacNasty has done in the past decade…
Feb 10, 2008 - 10:24 am 9. David Thomson:Harold Koh will destroy the United States. Deep in his guts, he is a self hating American. Please think about what Koh is saying. It very fair to describe him as a “one worlder” who believes a world court should ultimately make our laws. John McCain should constantly cite Harold Koh in his campaign speeches. The Yale law professor is a very dangerous man. Middle of the road voters need to learn about him as quickly as possible.
Feb 10, 2008 - 11:41 am 10. Letalis Maximus, Esq.:You know, I am pretty damned conservative and I find it amazing that people who claim to be conservative are so outraged at the so-called Gang of Fourteen. The fact is that the GOF prevented the partisan whack-jobs on both sides of the aisle from taking the Senate’s judicial confirmation process and driving it off the court fight cliff. As a conservative, I would almost always prefer a compromise that preserves the known status quo over a litigation option about which nobody, and I mean nobody, could predict the outcome. Preserving the known status quo is a large by God part of what being conservative is supposed to be about.
Geez. Can we please get some adults involved here?
Feb 10, 2008 - 12:06 pm 11. formerowner@kelo.org:Hmmm,
Current conservative judges in Kelo ruled the government can just take your stuff whenever they please, and turn your property into a shopping mall if it’ll raise more taxes than what you do with it.
So, color me unimpressed that some politician has promised to appoint some more people who read things in the Constitution that aren’t there.
Didn’t McCain/Feingold strip Americans of their free speech right to criticize government officials 60 days before an election?
Yes, I believe it did.
Rights? We don’ got no steenkin’ rights.
Feb 10, 2008 - 12:31 pm 12. Axel Kassel:The pledge to nominate only judges who “take as their sole responsibility the enforcement of laws made by the people’s elected representatives” would seem to overlook the occasional need for determining whether those enacted laws are actually permitted by the Consitution.
Feb 10, 2008 - 12:46 pm 13. SteveMGalbraith:Current conservative judges in Kelo ruled the government can just take your stuff whenever they please,
Kelo was decided by a 5-4 decision with Stevens, Souter, Breyer, Ginsburg and Kennedy ruling in the majority.
The four conservatives – Kennedy is a moderate – voted in the minority.
It was 4 liberals + one moderate versus the 4 conservatives.
Feb 10, 2008 - 12:59 pm 14. Swen Swenson:Ah, another Republican party-liner who failed the Dale Carnegie course. Just in the last few days I’ve been told that if I don’t shut up and get back in line to vote for McCain I must be an American-hating juvenile who wants to punish the country and bring on Teh Deluge.
Now you’d think that if you really want people to vote for your candidate you’d be just a little bit nicer to them. That sort of invective should be saved until you’re certain your goose is cooked and you’re looking for someone to blame for your failure..
…
Oh. Well, nevermind then.
Feb 10, 2008 - 1:22 pm 15. Ken Hahn:Please tell me why, given McCain’s record so far, that we should trust him on this or anything els.
Feb 10, 2008 - 1:34 pm 16. Cabbage:No way there are more than two appointments this coming term. Stevens is very likely, but don’t be surprised if he’s the only one.
Feb 10, 2008 - 4:14 pm 17. pilsener:Rush Limbaugh doesn’t need my defense, but he never said anything about taking his ball and going home, or about supporting Hillary Clinton instead of John McCain ala Ann Coulter, or that anyone else shouldn’t support John McCain.
It just demonstrates again how the media can successfully spin a different reality. The reasonable concern is that we still don’t understand McCain’s views on judges. McCain v. Wisconsin Right To Life is till unaddressed by McCain in any detail.
Feb 10, 2008 - 5:57 pm 18. david price:Because Ken
Feb 10, 2008 - 6:49 pm 19. Danaidh:1. McCain does not like to go back on his word
2.The Gang of 14 was necessary to confirm Roberts and Alito
3. McCain is actually pretty conservative if you look at his voting record.
4. Its not Mccain that will decide how strict constructionist a judge we can appoint, it will be the Democrat controlled senate.
The only hope that exists for someone who is not a strong liberal to get on the court lies with McCain’s election
wote McCain
Wishful thinking complete with a straw man argument. Not very persuasive.
I’ll be voting for a third party candidate this year.
Feb 10, 2008 - 7:07 pm 20. Eric Baum:I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people’s elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.
Feb 11, 2008 - 3:39 am 21. Tom Grey:Funny, I don’t see the word “constitution” here. As I read this, it says: I have a litmus test. I won’t appoint any Justice who might overturn McCain-Feingold or otherwise apply the constitution to rein in whatever lawmakers care to do.
Seems to me, McCain is taking the conservatives for idiots.
What the anger at McCain should be leading to action is in more focus on the 100 Senators, and especially those up for re-election this year, and most especially on the Dems.
Neither McCain nor Obama is really a Super Savior, and the many other Congress members are more important than the difference between McCain and other Reps (including Ron Paul, on judges).
I’m not convinced the Gang of 14 was so bad, in that it did get Roberts & Alito confirmed. It wasn’t great, how many other judges are still waiting?
Of course, I haven’t yet seen the Professor note a case where he thinks Miers would have voted differently than Alito. As an anti-elitist, I kind of liked Miers not being a judge.
Many Rep elitists are also anti-Huckabee. But majority pro-Christisn pro-life places are the best hope to get Senators who are pro-life judges. And importance the good Professor, a pretty strong anti-Huck voice, seems to always overlook.
Feb 11, 2008 - 5:12 am 22. Eric R. Ashley:Maybe I lack poetry in my soul, but that is simply not clear enough.
I’m not sure what he’s saying. And I don’t have the rose-colored glasses that seem so prominent in the liberal wing of the R party.
“John McCain walked across a street, and started with his right foot….He MUST be a conservative!”
Now, I’ll go take the meds our host has prescribed us. Anything to take my mind off the coming liberal created crack-up of the R party.
Feb 11, 2008 - 2:45 pm 23. gregh:Excuse me but McCain’s statement is about as blatent an admission as you’re going to get that he wants to nominate justices who will uphold whatever legislation Congress passes without regard to whether they view it as un-Constitutional or not, specif: McCain-Feingold.
Feb 11, 2008 - 4:04 pm 24. Gekkobear:In Wisconsin Right to Life, four justices (Souter, Ginsburg, Stevens and Breyer) agreed with McCain’s view that Congress had acted in accord with the Constitution when they passd McCain-Feingold.
Could he maybe pick Judges who would avoid “interpreting” the Constitution instead of ones who would avoid interpreting “laws” as he has said in every press release including this one?
Sure it would jettison his baby CFR, but if he said that (and I believed him) I might actually vote for him.
Right now? Not so much. He’s got a lot of history attacking the Constitution and damaging our rights with CFR and his 2005 lawsuit against the FEC.
He’s going to have to actually acknowledge the holes he’s punched in the Constitution before I’d trust him to fix them.
Feb 11, 2008 - 7:17 pm 25. shua nedy:For all those who are concerned McCain will use support for CFR as some kind of litmus test – is it possible to do this: In the confirmation hearings, the nominee can be asked if he had made any commitments to the President on how he would rule on this issue.
Feb 12, 2008 - 1:36 am 26. ted goldman:Is that something that could be done?
McCain promises?
Unless he thinks we’re all fools, only actions will make a difference.
Such as:
McCain goes to Senate floor and demands a national identity card.
(Fat Chance of that)
McCain states on Senate floor the names of possible future Supreme Court appointments.
McCain and his “gang of 14″
propose a sweeping tax reduction bill.
McCain admits that his campaign finance reform bill was a failure, and a joke.
McCain go into a Senate closet and, in the Senator’s own words, “go hump himself”.
Feb 12, 2008 - 8:11 am 27. Freeper: “Why conservatives should support Hillary Clinton for President”:[...] the best argument I have heard for voting for McCain is right here: I intend to nominate judges who have proven themselves worthy of our trust that they take as their [...]
Apr 25, 2008 - 2:15 am 28. u s president nominate judges:[...] in the 2000 … strange twist of fate McCain is elected president, any judges he would nominate …http://pajamasmedia.com/blog/mccain_and_judges/Giuliani Judges Lean Left – Ben Smith – Politico.comRudy Giuliani tells conservatives he likes [...]
Jul 12, 2008 - 6:44 am