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I want to add absentee so I will not be accused of flip-flopping.

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

but I was just saying why I oppose McCain no matter how many people try to prop him and what issues they use

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I thought you were announcing that McCain had kidnapped Ted Olsen. Now that would be a news story!

That this is a big get for McCain

Giuliani hitches star to conservative legal group
James Oliphant, Chicago Tribune, Sept 6, 2007

Olson was in the room at the first meeting of the Federalist Society in 1982, along with Calabresi, onetime Supreme Court nominee Robert Bork and a few others. The idea was to launch a countercultural legal movement in which conservative lawyers and scholars would roll back what they viewed as the excessive intrusion of judges into American life...

It appears to be working as planned. When he took office in 2001, Bush leaned heavily on Federalists to create a legal power structure to continue the work of seeding the judiciary. Roberts, along with fellow conservatives Alito, Scalia and Thomas, now form a formidable bloc on the Supreme Court.

That gives Giuliani's committee added significance. Should he win the presidency, his legal policy group likely would play a major role in the transition team, which screens potential White House and agency appointments, and ultimately in creating policy.

Olson said he expects Giuliani would appoint "conservative, strict constructionist" judges, but said that doesn't mean overturning Roe is part of that agenda. "He doesn't have a litmus test," said Olson, who has been friends with Giuliani for 27 years.

"Austere, intolerant, well-armed, and blood-thirsty, in their own regions the Wahhabis are a distinct factor which must be taken into account" - Winston Churchill, 1921

"All I ask is that he wins."

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

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It's one thing to promise to appoint strict constructionist judges (all the main Republicans have done it, as did Bush 43), and quite another to promise that judges must have a demonstrable record of this. And McCain has not only said that in this campaign, the above quote shows that he was saying it in 1990, presciently spotting Souter's weakness. Earlier this year McCain said in an interview with Ramesh Ponnuru: "I think it’s vital to strictly interpret the Constitution of the United States and have a record of that. Not just a statement of it, but a record of it."

These statements, combined with McCain's repeated pledges to appoint "clones" of Roberts and Alito, are about as strong as political promises come. Even if McCain wanted to back away from them (which I don't think is likely), the Senate's role in the confirmation process gives conservative Republicans a good opportunity to hold him to his promise. Considering the huge publicity that Sup. Ct. confirmation battles generate, if McCain were to appoint another Souter or Miers he wouldn't look very good having these statements waived in his face for several weeks.

There's a problem with that, though. When Souter was nominated, it was not understood that he would be a Souter. Many people thought that he would be pretty conservative (though perhaps a bit closer to O'Connor than to Scalia). It was generally Democrats and liberal groups that were demanding more details about his views and calling him things like an unknown quantity, whereas most Republicans and conservatives found it convenient to emphasize the need for nominees to be silent on matters that might come before the court.

This can be seen in the following passage from the contemporary NYT:

Washington interest groups have been clashing over the extent to which the Senate should quiz Judge Souter about his views, particularly those on abortion. Should Judge Souter emerge as an opponent of Roe v. Wade, the Supreme Court's 1973 decision establishing the legal right to an abortion, the Court could have a majority willing to overturn that ruling.

Many liberal groups have called on the Senate to question Judge Souter on specific issues involving not only abortion but also affirmative action, civil rights and the separation of church and state. A similarly exhaustive questioning in 1987 led to the rejection of Judge Robert H. Bork, who was nominated to a Supreme Court seat by President Ronald Reagan. That rejection has been denounced by many conservatives, who view it as a Senate usurpation of Presidential powers.

So when McCain criticized Souter, he was actually lining up with the Democrats.

On the other hand, the problem with that problem is that the Democrats, and McCain, had a good point. He was an unknown quantity, and it was quite reasonable to want to know more. My suspicion is that this bit of information should be taken not so much as evidence for McCain's solidity on the judges issue, but rather as evidence for his commitment to transparency, which is demonstrable in other areas as well.

It seems he has changed his mind about low-profile nominees.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

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Proud member of the Barry Goldwater wing of the party !

Or maybe it suggests that we don't really know what was meant the vague remarks conveyed second-hand by Novak's and Fund's anonymous sources.

One could reasonably conclude that McCain merely meant that being outspoken on conservative issues would not be an asset. That has no bearing whatsoever on being demonstrably constructionist. Political conservativism and being a strict constructionist, originalist are not the same thing.

A reasonable conclusion indeed, considering that the same accusers referring to the same alleged remarks reiterated Senator McCain's commitment to Roberts as an example.

absentee

One could reasonably conclude that McCain merely meant that being outspoken on conservative issues would not be an asset.

I'm sure that is exactly what he meant. It's not unreasonable to think that at all. But that's also the idea behind a stealth nominee like Souter. Pick a guy who is not outspoken and doesn't have much of a record, so he can make it through the confirmation process without getting destroyed. The problem is that you don't have very much to go on, either. He's about as stealthy to you as he is to the Senate.

Roberts is a less extreme example of this... but I have to say he's not my ideal, either. I'm not sold on the guy at this point. He's likely to be an acceptable justice, but he certainly doesn't appear to be any kind of Clarence Thomas, either. Time will tell.

The problem with this stealth game is that it is an extremely risky game that backfires more often than not. It's also a game that will always get you substandard jurists. I prefer his 20 year old opinion, myself.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

I don't have any quotes or direct explanations. But my impression from his talks was that 1) he thought it really would trigger a shutdown of the Senate and withdrawal of the unanimous consent decree by the Democrats, 2) he is a defender of the filibuster in general and may have been concerned that ending it for judicial nominations would lead toward ending it altogether and 3) he prefers to settle things through negotiation rather than through fireworks.

I would also note that strategically it bought him trust and credibility with the moderate Ds he was negotiating with.

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That McCain maybe afraid to challenge the democrats. We don't need someone who is afraid to put forward judges just because the dems may oppose them, we need someone who would do it inspite of the consequence and forge forward in battles with the democrats

You make good arguments. But ultimately I find McCain's politics confusing and demoralizing.

Anyone who has been paying attention to politics knows that the fight over the federal courts is and has been a blood sport for decades, going back to the battle over Robert Bork's nomination and Clarence Thomas's nomination.

The battle over the judicial filibuster and the nuclear option was the culmination of battles that had been raging since Bush became president in 2001. The Democrats began their stalling tactics when they took the majority in May 2001 (after Senator Jeffords switched parties). They continued obstructionist tactics when they were put in the minority beginning in 2003.

Every time the Republicans and/or Bush won an election, I thought, "Great. Now we can put some conservative judges on the federal courts." And each time the Democrats used whatever tactics they could find to stall this process of moving the federal courts to the right.

Then when the GOP got to 55 seats in the Senate and Bush was reelected, I thought that this was our moment, this was the conservative moment on the judiciary.

That's why McCain's position on the nuclear option was so disappointing. He chooses the worst times to go maverick on us. I would prefer that McCain join the Democrats on the minimum wage or on education spending and be with the Republicans on the nuclear option. Those are my priorities. Sure, I would prefer a "pure" conservative. But if one is going to have liberal tendencies on a few issues, I don't want them to be on things as important as the nuclear option.

McCain is simply not my kind of Republican politician. I wish he was, since he is very likely to be the GOP nominee this year and I don't like staying on the sidelines in any political contest and certainly not a presidential contest.

but I obviously forgot when I actually sat down to write it.

He made a statement during the "conservatism on his sleeve" SNAFU that he would not ask about or base his decision on McCain-Feingold. I've been looking for it since I saw your comment, but I can't find it.

But it's somewhere out there on these interwebs.

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Doesn't that say it all when it come to where he'd come out on strict constructionists and the First Amendment. If he announces, "I will only appoint Justices to the Supreme Court who will overturn McCain-Feingold," I would reconsider my opposition to the Senator.

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

A good choice for the next Sup. Ct. nomination would be Michael McConnell, a former law professor whom Bush appointed to the 10th Circuit. He is a sophisticated defender of an originalist theory of constitutional interpretation and generally considered a solid conservative. He's even written an article titled "Roe v. Wade at 25: Still Illegitimate." But from what I've read (which admittedly isn't that much) he seems to be more amenable to campaign finance regulation than Scalia or Thomas. He has written this, for example: "Americans have a First Amendment right to do what we can to sway public opinion, but not to buy privileged access to our leaders by giving money to their campaigns." (Note he's not rejecting the idea of giving money; he's saying there's scope for regulation to ensure that giving money doesn't amount to bribes and similar corruption.)

Now I'm not endorsing that view, and I don't want to argue about the interpretation of the First Amendment. I'm just giving O'Connell as an example of an originalist who might uphold McCain-Feingold or substantial parts of it. Another example that comes to mind is Byron White, who was one of the two dissenters in Roe but who also voted to uphold the campaign finance law in Buckley v. Valeo.

So contrary to what a lot of people have argued, I think it's reasonably possible to find originalists who are willing to uphold at some campaign finance regulation. Also, it's important to consider that McCain has clearly promised not to make this a litmus test for appointments in any event.

Finally, it's worth remembering that we conservatives are normally the ones complaining about judicial activism and courts usurping legislatures. A vote to uphold McCain-Feingold is a vote to uphold what a clear majority of the legislature wants, and apparently what a clear majority of the American people want. Conservatives are free to continue to fight this battle in the legislature. Too much complaining about the Court's failure to strike down a law is a bit unseemly in my opinion, after all the conservative outrage about judicial activism.

Good post.

I basically agree that CFR is, at the very least, dancing on the line of Constitutionality, but I do think that the critics of it make WAY too big of deal of it. It's not "shredding the Constitution" or any such nonsense.

Anyhow, McConnell would be a good choice.

I also think Emilio M. Garza would be a good choice. He's got a great background, nominated to be a District Judge by Reagan, Appeals Judge by Bush Sr. Considered for the Alito seat. He's hispanic, the D's would throw a fit over that one. He's also from the district that covers Arizona. I don't know the details of his jurisprudence, but I know that he's always mentioned along with McConnell, so I'm guessing they are similar. He'd be a good fit for McCain.

John Bolton for President
"FEAR THE 'STACH!!!"

If opponents of CFR make way too much of it, tell me this. Does Seantor McCain think we need more legislation regulating elections?

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

McConnell might not be the most confirmable but he is a brilliant and decent man.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

I don't see how fighting against BCRA could be considered judicial activism in any sense. The legislature has no power to pass legislation in opposition to the Constitution, and I can't see how any legitimate originalist could claim that BCRA is constitutional - parts of it, maybe, but not as a whole.

I see your point. I don't think it'd be good to get into a long debate on this thread over the meaning of "judicial activism" or the interpretation of the First Amendment, and I'm going to have to sign off soon for awhile. So I'll just give a very general (though unfortunately a bit windy) reply. The First Amendment is vaguely worded, and on most originalist views it is consistent with regulations that burden or prohibit many types of speech: obscenity, indecency on prime time TV, commercial speech (e.g. misleading commercials or false claims about the value of publicly traded stock), slander, libel, 'fighting words,' yelling Fire! in a crowded theatre, certain types of subversive or treasonous speech, publishing military and other government secrets, etc. The list could go on. Now it's true that of all speech, 'political speech' is part of the core of what should be protected the most. But even to make that argument we have to go beyond the literal words of the First Amendment and start making moral-political arguments about how to interpret it. Moreover, we have to show how *donating money* equals speech itself, another political argument. Now, I think these arguments can be made. But conservatives have generally been in the business of arguing that moral-political judgments first and foremost belong to the legislature, and that the people should be allowed to make their own laws unless the Constitutional explicitly prohibits it. With McCain-Feingold, the people through their legislatures have gone out enacted a law they want--and one they could change at the next election if they want that. (So long as we have the Internet, I don't buy the argument that McCain-Feingold prevents criticism of incumbents.) I think that conservatives should temper their outrage over the unconstitutionally of democratically enacted laws, and generally reserve the cry of "judicial activism" for when courts strike down legislation. I'm aware of the arguments that "judicial activism" could mean failure to strike down an unconstitutional law, but I don't think that's a good use of the term.

I thought that the Bill of Rights was an exception to the old majority rule principle. Judicial activism is when you make it up and begin talking "penumbras," "substantive due process," etc. You can't hang "judicial activism" on defenders of the First Amendment.

You do name two good examples of judges who might help your point. McConnel wold be a great Justice from the perspective of those who come to this site.

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

Michael McConnell can make a legitimate claim to being the greatest legal mind in the country (see Bork, Easterbrook and Posner also). He is a known "textualist" who has written brilliantly on the subject. Indeed, he is so well respected that when Bush nominated him to the Tenth Circuit, over 300 law professors and legal scholars, conservative and liberal, wrote in support of his confirmation.

The sad thing is that because some of the 300 law professors and legal scholars who supported him are liberal (including Larry Tribe), many conservatives would oppose him. In a strange way, I think that makes him more of a likely McCain pick. And in an even stranger way, that makes me just a little bit more supportive of John McCain.

Roe v. Wade was decided by a Court with a majority of Republican-appointed Justices. Ever since Roe v. Wade the Court has had a majority of Republican-appointed Justices. So we need more Republican-appointed Justices to overturn Roe v. Wade??? Smell the coffee--you really think we are just one election away from overturning Roe v. Wade?

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

I am a lawyer and a specialist in constitutional law. I have been involved in the pro-life movement since my teens. I have followed the Court's jurisprudence on abortion for 15 years and have spent enormous amounts of time studying its opinions and the surrounding scholarly literature. I've intimately followed all the confirmation battles since Bork and am well aware of the grave mistakes that Republican presidents have made. I think Republicans, conservatives, and pro-lifers have learned from some of those mistakes. I certainly realize they could be repeated. I offer no guarantees that either McCain or Romney will do the right thing. I'm not a naive optimist. But I do believe there's a very good chance to overturn Roe v. Wade, and I laid out the facts in my last post for why I think that. Pointing to past mistakes isn't enough to counter my argument.

I am also a lawyer, know the Constitution, and the issues.
I honestly believe that the best we can get is a Court that trims Roe v. Wade, but they will not overturn it. Justices like Roberts will not extend the case but they worry about the Court as an institution and don't want the public to actually realize how much everything simply depends on who makes the call. So I don't think that Roberts (and maybe Altio after all his questioning by the dear Senator Specter about "super duper" precedents, etc.) will ever sign an opinion that says Roe is overturned. Sort of like Wisconsin Right to Life. As an original matter, Roberts and Alito might have struck down McCain-Feingold as violating the First Amendment. But faced with the fact that the statute was upheld by the McConnell challenge in the past couple of years, they opt for a narror decision to strike down the challenged provision.

Part of the problem that we nominate "strict constructionists" and Democrats use a litus test to appoint judges. I have no faith that Senator McCain will ever nominate a Justice anywhere close to Roberts, let alone like Thomas or Scalia. In any event, Roe was decided in 1973 and we've had a Court with a Republican-majority all that time. Somehow, I believe that if they really wanted to get a Court that overturned the decision they might have found a way. I actually think the party leaders don't want to overturn Roe v. Wade. What's better that always being able to tell the base that you have to elect us to overturn Roe? And if the case really were overturned, the Democrats would activate their base to reinstate Roe. I don't think it's a coincidence that we never get over the hump and when we do get close someone enters into a "bipartisan" deals that protect moderate Republicans.

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

I agree that we can't make firm predictions about Roberts and Alito, since their record is enigmatic in some ways and they both made some questionable statements about precedent in their hearings (though, on the other hand, that might have been strategically clever). I've read the tea leaves as best I can, and I'm more optimistic than you. But certainly not overconfident.

I've been following McCain very, very closely on this. And again I venture no confident predictions, and I recognize there is reason for concern. But in the end I do think there's a very good chance he would nominate someone like McConnell or Garza. And I don't think Gerard Bradley, Ted Olson, and Sam Brownback would be supporting him if there weren't such a chance.

I think Reagan did want to overturn Roe v. Wade. O'Connor turned out to be a disaster, but there were actually good reasons to think she was anti-Roe when she was appointed, and her initial opinions showed promise. A lot of people think it was a prudential mistake to nominate Scalia first and then Bork, and that Scalia would have had an easier confirmation in 1986 (after the R majority was lost in the Senate) since he didn't have Bork's paper trail. But in any event, it seemed at the time that Bork could been the deciding vote against Roe. And Reagan settled on Kennedy only after Bork and Ginsburg went down. I don't think either George Bush was philosophically committed to the pro-life cause and so didn't have a strong personal commitment to overturning Roe. Bush 41 gave us Thomas--but also Souter. Bush 43 gave us Alito and Roberts--but wanted to give us Miers. Definitely mixed results. But that's light years better than what we'd get with a Democrat. Even if you take a skeptical view of McCain, I don't think that he'd do worse than Bush 41, Bush 43, and Reagan. I think it's possible he could do much better. And given everything conservatives have learned over the last 22 years, and given McCain's explicit promises, we'd be in a strong position to influence the outcome.

If we still had a Republican controlled Senate, I would find this argument more persausive. But it's hard to see how McCain, who hasn't shown much of a willingness to confront Democrats over the obstructionist tactics regarding judicial nominations and a Democrat Senate is going to result in much progress for the federal courts.

A few years ago we had 55 Republican Senators. Yet some Republican Senators didn't have the stomach to tell the Democrats the news, that the Republicans had won both the White House and a significant majority in the Senate and that they would no longer tolerate any obstructionism from the Democrat Senate minority.

We the voters gave the Republicans the capability of confirming judges without Democrat influence. But some Republican Senators decided that a "power sharing" arrangement was somehow better than using the mandate that the voters gave.

Now one of those "power sharing" Senators is on the brink of winning the GOP nomination. He and his supporters are using the federal courts as a motivator for GOP voters to be loyal to the party.

I believe that it is time to use a little behavior modification with those who have let us down.

Your analysis is bass ackwards.

It will be a LOT harder for the D Senate to block someone from McCain, who has a reputation as being 'bipartisan' and 'moderate', etc. If they flagrantly abuse his nominee, it'll cost them among independents and moderate D's.

If it's Romney or Huckabee, they'll be easily identified as those "scary" Republicans who want to (insert leftist boogieman here), and their lack of appeal to moderates and independents will allow them to block their nominees freely and flagrantly.

John Bolton for President
"FEAR THE 'STACH!!!"

judicial appointments are the Ralph Nees of the world. They pull the strings of the Democrats. No Republican's appointees will get any break because he was "bipartisan" in the past. Pat Leahey, Dick Durbin, Barbara Boxer and John's ole buddy, Teddy Kennedy, will savage any conservative appointee he puts up for the Court. If you think McCain gets any leeway you're kidding yourself. To the contrary, they know he will compromise and sell out. The will hammer him even more because they know he never fights.

"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

Sure, there will be plenty of savaging; that's part of the game. But Leahy in fact voted to confirm Roberts. And we don't need to win Durbin, Boxer, and Kennedy. Roberts was confirmed 78-22 without their support. Replacing Stevens will be more difficult because it has more potential to swing the balance on the court. But we need only a handful of the more moderate Democrats, and that's by no means impossible, especially with a nominee like McConnell, whom 300 law professors supported for the 10th Circuit and the Senate confirmed by a voice vote.

And I still think McCain is going to be able to twist the arm of or call in a favor from a few of his old Democratic buddies in the Senate.

If you think that McCain is going to make it to the White House and still be considered 'bipartisan' and 'moderate.'

That's what W was: Uniter, not a divider. Compassionate conservative. "Hey Kennedy, why don't you write my education bill?" "I want the government to pay for grandma's drugs."

They had no problem turning that guy into an extreme right-winger. McCain will be even easier.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

I agree that a Democratic senate makes things more difficult, but it's not an insurmountable barrier. We'd only need to pick up a few Democratic votes, and this is one area where McCain's history of bipartisanship and friendly relations might actually come in handy. I'd be surprised if he couldn't twist the arms of a few reluctant Democrats.

John Roberts was confirmed 78 to 22, and though the Alito fight was closer, he was still picking up some Democratic support at 58 to 42. This suggests that picking top quality candidates is key, and we're fortunate to have a lot of good choices after years of Reagan and Bush appointing many very talented and solid conservatives to the bench and to other government positions.

A very strategic choice would be Michael McConnell, a 10th Circuit justice whom I discuss in a post above. He is firmly on record as an originalist and even as an opponent of Roe. But he is also a former law professor who was one of the nation's leading scholars of constitutional law. As a result, over 300 law professors signed a letter of support for him when he was appointed to the 10th Circuit. He was confirmed by a voice vote. It's not going to be easy for those who supported him the last time around to start arguing now that he is unqualified. But they will try if he is appointed to replace Stephens, because the possibility of Roe being overturned will make for a confirmation battle of epic proportions. Still, I think he would be a formidable nominee and would probably be appointed.

Kelo provides a better example of judicial activism to rally around. The dissenters in Kelo are generally thought to feel that Roe was a judicial overeach.

Tactically, if the president nominates a solid originalist and he gets a lot of grief from senate democrats the thing to do is to go over the head of the Senate. Get the American people to tell their Senators that they want the judge confirmed who does NOT believe that developers have a constitutional right to take their homes away - and they want that originalist judge who believes people have a right to their own homes to be confirmed NOW!

I should donate my money to a guy who took away my free speech rights, tried to cram an amnestybill horror down my throat, fought against my tax cuts, and insulted me several times, yeah right.

"Nothing works like freedom, Nothing succeeds like liberty"
Kyle

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"I would rather have clean government than one where quote first amendment rights are respected..."

John McCain at http://www.redstate.com/story/2006/4/29/111841/988.

I think our main disagreement is what the alternative was. If Dems withheld unanimous consent and shut down the body entirely, we would not have Judge Brown, Judge Pryor, or another dozen (IIRC) or so who were appointed afterwards.

The idea that we could just get 51 votes to do this and then the Ds would just sit back and accept it is a very rosy view of the alternative situation. I don't think it is accurate, but I understand that some do.

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