It's McCain's World And We're Just Living In It
By Gerry Daly Posted in User Blogs — Comments (20) / Email this page » / Leave a comment »
Currently, Matt Drudge is running a teaser with a new quote from Senator John McCain:
"During the campaign, President Bush said he will appoint judges who will strictly interpret the constitution... thinking anything else is either amnesia or ignorance... elections have consequences... whomever he nominates deserves an up or down vote and no filibuster... and an up or down vote is what we will have..."
Shortly after the filibuster compromise by the 'Gang of 14', I wrote a quick and dirty analysis of what McCain's angle might be. I think now is as good a time as any to revisit it... below the fold.
Let me start with a premise: John McCain wants to be President, badly. I think this is a solid premise, so I will not spend any time building its basis.
From this, two common sense things follow. First, he will not want to set things up so that, should he be elected, his own ability to nominate and confirm the type of judges he prefers will be hamstrung. Second, he will act in ways that he thinks will help him win the nomination and the Presidency.
On the former point, understanding what type of judges McCain favors is important. For clues of this, we can look at his record in the Senate on judicial confirmations. He voted for the confirmation of Robert Bork to the Supreme Court. He voted for the confirmation of Clarence Thomas for the Supreme Court. He voted against the confirmation of H. Lee Sarokin to the Circuit Court of Appeals. He has voted for every single one of President Bush's nominees when the opportunity has arisen, both for cloture and for confirmation. From these votes, it is reasonable to conclude that, when it comes to judges, he is solidly conservative.
On the latter point, he has already tried for the Republican nomination, and failed because he was unable to garner sufficient support from the conservative base of the party to join with his appeal to moderates and crossover voters and put him over the top. It is reasonable to conclude that he is aware that he will face the same difficulty in securing the 2008 Republican Presidential nomination.
Together, those two points lead me to conclude that the agreement on filibusters is not the end game from his perspective, since it works against both. Harry Reid has made it clear that there will continue to be filibusters against some of President Bush's nominees (the very type of judges McCain has voted for in the past), and the anger at the compromise on the Republican side is centered in the conservative core of the party. I conclude that, for McCain, the agreement is a rest stop on the road to the real final destination.
I also note that, in the Republican contingent in the Gang of Fourteen, Lindsey Graham and Mike DeWine joined McCain. The latter was somewhat of a surprise; in the wrangling leading up to the deal, his name was not mentioned as being a possible Republican defector. Even Graham's involvement was a bit of a surprise. If one had constructed a list a month or two ago of Republicans who might buck the party on some of Bush's nominees, the list would have had names like fellow gang members Susan Collins, Olympia Snowe, and Lincoln Chafee, along with others like Arlen Specter, not Graham and DeWine.
An interesting point about Graham and DeWine is that they were two of the four Senators (along with John Kyl and Chuck Hagel) who supported McCain over Bush for the 2000 Republican nomination. Is their presence in the Gang of Fourteen a case of like minds thinking alike? Or, possibly, is it a case of McCain supporters helping McCain attain his goals?
This group is certainly on message with each other:
"Some of you who are looking at the language may wonder what some of the clauses mean. The understanding is -- and we don't think this will happen -- but if an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a yes vote for the constitutional option." -- DeWine, 5/23/05
"If one of the seven decides to filibuster -- and I believe it's not an extraordinary circumstance for the country, for the process, then I've retained my rights under this agreement to change the rules if I think that's best for the country. That's only fair." -- Graham, 5/24/05
"It's up to us, the 14 to decide what's extraordinary circumstances. We trust one another. We'll know it. It's like child pornography, my friend. You know it when you see it. And I hope that the President will send over more nominees who are acceptable and at the same time in keeping with his philosophy. And I am confident that at least the seven Democrats we are dealing with will not use the judicial filibuster except in most extreme circumstances. I'm confident that this agreement will hold." -- McCain, 5/24/05
Pay particular attention to McCain's statement, especially the part about his confidence in the Democrats in the Gang of Fourteen.
At this point, let me draw up a scenario-- a little flight of fancy.
Let's say that in the coming weeks, a few of President Bush's nominees are confirmed, but Harry Reid makes good on his promise to filibuster others, like Saad and Myers. Further, let's assume that, as anticipated, at the end of the Supreme Court's session in June, Chief Justice Rehnquist announces his retirement. I think it is pretty clear that the real test of the filibuster compromise will occur with Bush's nomination for any Supreme Court vacancy.
Who the President will nominate can only be speculated at this point. We can merely guess. However, our guesses can be educated. Ann Althouse opines,
After waiting all this time to get a Supreme Court appointment, Bush is going to pick a different person -- because of this compromise? That doesn't seem Bush-like.
John Podhoretz seemingly agrees:
Oh, and if I know my President Bush -- and I think I do--when the Supreme Court opening comes up, he will appoint Miguel Estrada unless Estrada refuses him.
There was widespread acknowledgement when Bush first nominated Estrada to the Circuit Court of Appeals that he was possibly being groomed for a Supreme Court appointment. For this little hypothetical, Estrada it is. The President consults with members of the Senate, both in the Gang and not, both Republican and Democratic, and says that, having considered all of their input, he still believes that Miguel Estrada is a judge of the highest caliber, and would be a welcome addition to our highest court.
The Democratic base goes apoplectic. Ted Kennedy calls it an outrage. Harry Reid says it not only rises to the level of being an "extraordinary circumstance", it is the dictionary definition of it. A filibuster ensues.
Look at the lay of this hypothetical land from the perspective of John McCain. There was a cloture vote on Estrada before. McCain voted aye, as did DeWine and Graham. So did Ben Nelson (and so did Florida's Nelson, for that matter). Is there an opportunity here for him to mend some fences with the conservative base of the Republican Party? Obviously, with some there is no possibility. However, the only thing that is relevant is if McCain thinks there is an opportunity, and he undoubtedly understands that he does not have to mollify the entire conservative base, but rather just enough to where he can win primaries. He knows that, despite the aggravations he's been causing the base over the past five years or so, he has been a pretty solid conservative over the course of his entire Senate career (his lifetime ACU rating is 83). He knows that security and defense issues are extremely important with the base, and he has been stalwart on them all along. He knows that, when it comes to spending, he has been better than President Bush has been. And he knows that judges are very important indeed to the core of the Republican Party.
I can imagine McCain getting up and saying that he is disappointed that the Democrats have not lived up to their end of the bargain. That Senator Nelson of Nebraska had agreed, when voting for cloture previously, that Miguel Estrada did not deserve to be filibustered, and had committed to support filibusters only in the most dire of circumstances. And that Senator Nelson of Florida had also previously voted against a filibuster of Estrada, so this must be coming from the party leadership, rather than from the conscience of the individual Senators. And that while he did his best to try to help stop the rank partisanship that had infected and poisoned the process, he cannot abide by this effort to deny Estrada his vote. "If one of the seven decides to filibuster -- and I believe it's not an extraordinary circumstance for the country, for the process, then I've retained my rights under this agreement to change the rules if I think that's best for the country. That's only fair." Lindsey Graham follows suit. "Some of you who are looking at the language may wonder what some of the clauses mean. The understanding is -- and we don't think this will happen -- but if an individual senator believes in the future that a filibuster is taking place under something that's not extraordinary circumstances, we of course reserve the right to do what we could have done tomorrow which is to cast a yes vote for the constitutional option." So does Mike DeWine. Fellow 2000 McCain supporter Chuck Hagel also stands firm.
How about John Warner? He said on Tuesday,
"To use an example, we simply unscrewed the fuse. But that fuse can be put back in if we detect that it's not extraordinary circumstances, [where] we're back to where the Democrats begin to trot out and do a leadership-led type of series of filibusters."
With several filibusters already going, and now with one on queue for the Supreme Court, and with three of his fellow Republicans saying "enough", what would he do faced with this leadership-led filibuster? But with or without Warner, if the McCain clique moves together, Bill Frist would have the votes, with one to spare (55 - 7 + 3 = 51). Even an Arlen Specter defection would not be enough.
And think about how this all would play out in the media. The press, as they tend to do with McCain, has been giving him big, sloppy kisses ever since the deal was brokered. They have bestowed upon him the mantle of mega-credibility. He is the reasonable one. The media would likely try to turn on McCain, but after telling people to look at him as an example of what is right, it would be very hard for them to suddenly convince people to look at him as an example of what is wrong. I don't see how the Democrats would be able to break through it.
And with Frist having the votes, the Democrats would have to decide between losing the confirmation battle and keeping the filibuster (by allowing the vote on Estrada) or losing the confirmation battle and losing the filibuster (by forcing Frist to pull the trigger). Either way, they lose the confirmation battle. Either way results in confirmation, with McCain as Estrada's hero. Further, some of their members would be forced into making lose-lose votes themselves. Ben Nelson agreed to the compromise, and had voted for cloture before. Side with his party, and he highlights how he differs from the majority of his state on judges. Defect, and he will see his out-of-state funding collapse. The fix would be even worse for Florida's Bill Nelson, who will need both the support of Latinos and the support of the party's core to hold his seat. Landrieu just voted yea on Owen-- she obviously wants to come back to Louisiana looking like a moderate on judges to her constituents. What would she do? And so on-- McCain may be thinking that, with any luck, he could go into a possible Presidency in 2009 with a friendlier Senate than Bush has now.
Now consider how things would have gone if McCain and crew had not brokered a deal, but instead had towed the party line. Would McCain have had any way to play the hero, rather than just a good foot soldier, in the judicial battles? Not that I can see. And I doubt that he would think that just being a good foot soldier would have bought him much with the base. It would not have been enough to offset everything else that has happened with him over the past few years. But saving the day on a Supreme Court battle? He may think that just might. And President Bush would owe him one, which would be very handy during the primaries.
In other words, if it plays out in this way, McCain will have advanced both of the points that I laid out earlier. He would have helped craft the judiciary towards judges he prefers while setting the table for him to get through his own potential nominees, and he would have enhanced his perceived chances at winning the Republican Presidential nomination. Fantasy? Perhaps, and perhaps I should lob spitballs at commenter BMT who got me thinking about this in the first place. But I will tell you this, I don't doubt for a second that President Bush would nominate Estrada. And I doubt for even less that if McCain thinks it would help him on his Presidential quest, he'd do it. He might even suggest it, if and when the President consults him before making his decision on whom to nominate to replace Rehnquist.
Addendum: Mort Kondracke reports that Sen. Hagel was critical of the deal, which suggests that, should my scenario play out, he would not be open as a target for Dems to try to flip.
Addendum Two: Many days after I had written this (almost a month), I come across this post by Jack Kelly:
McCain can only win the nomination if:...
(3) McCain does something spectacular to get back in the good graces of conservatives. (Suppose Bush nominates a conservative to the Supreme Court, and Senate Democrats filibuster. Then suppose McCain -- citing Democratic bad faith -- leads enough of the GOP "Gang of 7" to support the nuclear option. Wouldn't that generate forgiveness on the part of many on the Right? Shouldn't it?
We may get to find out. Only July 1st, McCain told Tony Snow on his radio show that if the Democrats filibuster a mainstream conservative, the deal is off.
(The above was originally posted here. And while I used Estrada, because his name would provide some additional talking points regarding previous votes, McCain's angle may be the same regardless of who the nominee-- as long as it is a conservative judge of the type that Democrats have protested before, and of who McCain has voted in favor.)
Of which there is a seemingly endless supply in the Court battles.
Great points about McCain's consistent support for conservative judges. However, let's recall some of the causes of the base's frustration with McCain's views on the judiciary last time around (this was the one thing that really bugged me when I voted for him), and why he'd have yet more fences to mend:
- McCain said he admired Justice O'Connor.
- McCain suggested that he's appoint Warren Rudman, who boasted about foisting David Souter on us and whose autobiography ripped Christian conservatives, as Attorney General. This led to some difficult moments on the campaign trail.
- McCain said that he approved of all the current Supreme Court justices who were nominated by Republican presidents, and refused to go back on that when pressed on whether he meant to include Souter.
Now, each of these comments could be construed as just feel-good fluff, but McCain clearly didn't talk the talk last time around, which led people to doubt his past record of walking the walk. (Which is the opposite of the usual problem for politicians). He will still need to live those comments down.
I've never counted him out when thinking about whether Senator Frist has enough votes to change the rules, usually figuring he'd step if (when?) Senator Specter went soft.
I don't see it winning him the primaries, though. In 2000, his strength was among non-Republicans, both independent and Democratic. I don't think the primary voters will be fooled by one vote the other way, even on an issue this big.
I say this for two reasons. One: If the President does get a chance to re-shape the court, and the new appointees immediately come in and loosen their grip on abortion laws, then judges won't be as big an issue. In fact, if O'Connor's (and Rehnquist's) replacements come in with fresh energy are able to sway Kennedy, then we might even see Roe overturned completely.
Two: Other issues are coming up that will overtake both judges and the foreign War on Terror as the key Republican issues. Illegal aliens are one of them, and McCain is completely on the wrong side of that. With Senator Clinton positioning herself far to the right of McCain on that issue, McCain might see ideological as well as strategic votes against him.
Am I biased by my strong distaste for McCain? Maybe, but I can't be the only one. Lifetime ratings matter little when you can saturate the airwaves with his last few years.
... as 'feel good fluff', except for the part about Rudman.
If you recall, Rudman was the genius who really pushed for Souter to George H.W. Bush.
However, I will point out that the Attorney General's primary job is law enforcement. I've never quite joined the equating that some have put in that position as compared to the judiciary.
I can easily imagine a moderate or even a liberal Republican being an outstanding Attorney General, even though I would be very opposed to a liberal Republican being nominated for the Supreme Court (I would tend to disagree with most of their votes, as I do with Souter and Stevens). Case in point- Giuliani.
But saying he approves of all of those appointed by Republicans? Nah, I don't sweat that. It would include Stevens, for goodness sake. And given that McCain voted for judges like Bork and against judges like Sarokin, I'll put that off to McCain uncharacteristically invoking Reagan's 11th in order to characteristically put himself in the position of seeming like the man for all people.
... when looking at what might happen with regard to the judicial confirmation battle.
It doesn't matter what will happen in regards to conservative acceptance of McCain if he leads the charge.
It matters what McCain thinks will happen, or hopes might happen.
NIM stands for No Included Message. Which by typing this I have technically caused to be a lie, but you know what I meant.
is from AZ. I would be surprised if McCain did not voice support and admiration for her.
Query:
POTUS appoints Al Gonzales and a conservative to fill the two open seats. The Dems let AGAG through but attempt to bottle up the conservative. McCain goes to the mat for the conservative and gets her on the Court. When asked about Bush's choices, McCain says he respects the president's right to appoint his own judges, but he really wishes that someone like Luttig or Roberts had been made Chief and not Gonzales.
Once again, McCain would be undercutting Bush. But this time, he and conservatives would be on the same side.
Would this make you a) feel better about McCain, but still not trust him, b) consider voting for McCain in 2008, or c) shake your head in utter disbelief and take up golf for 2006.
Since it seems topical, here is a front pager on McCain's conservatism.
I am not that impressed by McCain, BUT, depending on the other candidates, I won't swear I won't vote for him in the primaries.
If our others are particularly weak, and the Dems put up a media darling, (let me think......Hillary, maybe?) McCain may be our only chance.
The barely-liberals like him well enough, and the MSM has slobbered all over him for so long, it would be impossible to completely turn on him. Also, given their druthers, even as liberal as most of them are, they might prefer 4 years of McCain over another Clinton term. I think even they may have suffered from scandal fatigue during the 90s.
Anyway, if our candidate can neutralize the MSM, as I believe McCain could, and simultaneously keep the base from falling apart, we would surely have another 4 years. If, as POTUS, he would appoint strict constructionists, I would tolerate all his other quirks. The courts are the most important thing right now. If we don't get them under control, the Republic will not survive (IMHO).
I'm not sure that's quite the correct way to phrase it, but what I'm trying to point out is that McCain's strengths are Bush's weaknesses and vice-versa.
Bush appeals to the base; McCain to swing voters. Bush is good on taxes, the war, and entitlement reform. McCain is good on spending, small government, and, perhaps, the judiciary. Bush's likeability makes up for his communication problems. McCain's communication skills make up for his innate ability to make people angry.
In a perfect world, we'd be able to take the best parts of Bush, combine them with the best parts of McCain, and have a great candidate.
In this world, we have to take the good with the bad. McCain would likely cut spending as president to get the deficit in line, and I doubt a GOP Congress would allow him to raise taxes to do it. He also supports Social Security reform, and he could probably con enough Democrats into actually doing it. He'd likely end the creeping federalization of domestic issues like education and health care. If he turns out to be a constructionist on judges, his stock goes way up, especially if Bush turns out to disappoint on the issue, as many suspect he might.
I agree that McCain has to address the insane immigration system this country is running. It IS a nat'l security issue, and I don't doubt McCain's a hawk. Heck, I'd gladly exchange increasing the levels of legal immigration for militarization of the borders and an intense program of assimilation (e.g., English-only). But even Bush hasn't been able to address that issue properly, so I doubt any of our 2008 contenders will.
The problem is, if McCain takes Bush's positions on abortion and elections, then he suddenly loses a lot of that crossover appeal he used to have.
NARAL and Emily's List will start painting him as a mass murderer of young women, while the Democratic nominee will trot out "safe, legal and rare" and play the moderate who supports "preserving the settled right of women's privacy from extreme right-wing activists." This rhetoric will wobble a lot of people who might have voted for him otherwise.
Throw in the Senator's solid support for the War on Terror, and a McCain presidency will be touted as "effectively four more years of Bush," and the Democrats in the press will turn on him.
Meanwhile all the conservatives who can't stand him will be disaffected, and the Democrats will have a shot to win.
I meant "abortion and judges" in that first sentence.
"McCain takes Bush's positions on abortion and judges"
He does. He's pro-life and he's voted for every single judge that Bush has nominated and he voted for Bork in the 80s. That is why he is so well positioned as Mr. Reasonable Bipartisan who can say "Dems aren't playing fair" and not be tagged as Just Another Republican Partisan. He is conservative but he's got more credibility than other Republicans with the media and the vast non-Republican, non-Democratic segment of the country.
In the vernacular of the street. It begins with s and ends with t and has a lot of lurrrrrrve in the middle of it. I'm not disagreeing with your characterization, BTW. I'm just sayin'. ;)
He gets to have a barbecue with Fred Thompson this month where, presumably, he'll be asked to give his opinion on potential Sup. Ct. nominees. Gee, I bet the other 99 Senators would like to be asked that question.
McCain has figured out how to get diva treatment in Washington. But he has not figured out how to win the hearts of the millions of social conservatives who knocked on doors, worked the phones, and doled out money for Bush last year.
Sure, McCain's got his posse, but he will never get the nomination. And he can blame himself for trying to accuse Christian leaders of being "the forces of evil." I don't go to Reverend Falwell's church. I'm a different breed of Christian. But even I'm savvy enough to know that you can't call Falwell and Pat Robertson "the forces of evil" and then expect to win the hearts of caucus- and primary-going Republicans.
Can adapt himself to be whatever he's needed to be, or whatever he needs himself to be, at any particular moment, and that's why the Demos were courting him so hard to be the split ticket running mate with JFKerry. Listening to him speak and watching him work sometimes reminds me of watching an episode of the Jetsons -- you know, push a button and everything just folds up and reconfigures itself, then you stuff it into your back pocket and later, BAM! presto-chango, it becomes a whole house, or a big tent, when just a few minutes ago it was a car.
I think he's beginning to tick off his core constitutency, and he may be perfectly willing to do that because, frankly, when he runs for President, he's not gonna care if he's made them angry if he's up against the Hillster. They'll vote for him anyway out of sheer shock and awe.
What's amazing to me is that some people have done so much to beat the tar out of Bill Frist, and as a result we might wind up with John McCain.
Now you think about that for a second. President. John. McCain.
We should be careful of what we wish for...
You can't say McCain's not good on the war. He's sniped at Bush a bit over some operational issues but never wavered on the Iraq war being a critical part of the GWOT. If anything, McCain's more of a neocon (in the post-2001 usage of the term) than Bush is (almost all the original neocons supported McCain in 2000).
.....and eventhough I would not have picked him out of a "Republic Presidential Candidate" line-up before your comments, we have to weigh in all the things you did in your post. Too much, especially Social Security, is at stake for the GOP to lose the POTUS for at least another 8 years. (okay, maybe forever would be good. ;-) )
AND, With the recent bombings in London, and the fact that the "terrorists" were citizens, we all need to worry over border issues. Our next candidate will be wise to have a platform that has plausible solutions. Unless Pres. Bush becomes more pro-active since the London incident, with the full realization that we now see a "new?" threat to all countries, then it will definitley be a hot topic middle America will want answers for. (and while we are at it, can we get some citizenship reform and clarification for those who've crossed our borders already?!? Or is this just me?)
Thanks for the clearest perspective on Mr. Cain I have seen. I don't have the savvy most of you guys do, just the need to learn and judge for myself, but I have to say,.....you probably nailed this one.
IT IS NEVER CROWDED ALONG THE EXTRA MILE
I don't think that it's coincidental that close McCain colleagues are in the subgang of 7 -- he probably has their proxy on how to act if the Democrats get "unreasonable" during the SCOTUS confirmation process. Harry Reid is neither an idiot or a blind idealogue so I suspect that it will have to be something truly outrageous, in his opinion, before you see him backing a filibuster.
The discussion of the political calculations involved strikes me as being highly plausible. McCain seems to tout rather than downplay his Presidential ambitions and knows that he must accomodate the social conservatives if he is to be considered a nomination front-runner.