Professor Bainbridge...on law, politics, religion, culture & food

McCain and Judges

Byron York corners (pardon the pun) John McCain in light of a John Fund piece claiming that McCain would not nominate someone like Justice Samuel Alito if elected President:

I got a moment with John McCain, after an airport rally here in Orlando, to ask him about a report today by John Fund quoting some unnamed conservatives quoting McCain to the effect that, in Fund’s words, “[McCain] 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.’”

“Let me just look you in the eye,” McCain told me. “I’ve said a thousand times on this campaign trail, I’ve said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I’ve said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked.”

“I don’t get it,” McCain continued. “I have a clear record of that. All I can tell you is my record is clear: I’ve supported these guys. I went to the floor of the Senate and spoke in favor of them. It’s in the record, saying, ‘You’ve got to confirm these people.’”

This is critical. Like a lot of conservatives, judicial appointments rank very high on my list of Presidential considerations. I’m willing to take my lumps in the political process. If the American people want to elect tax and spenders, fine. But I don’t really want key social policy disputes being decided by a 5-4 vote of the Supreme Court except where the Constitution admits of no other option. Judicial restraint must be the order of the day. So must competence. No more Harriet Miers!

So I went to the record. Here’s what John McCain had to say about Samuel Alito on the floor of the Senate on Wednesday, January 25, 2006 (109th Congress, 2nd Session) when debate on the Alito nomination to the SCOTUS opened (taken from 152 Cong Rec S 35):

We know that elections have consequences. When President Bush ran for reelection, he stated plainly and often that if given the opportunity, he would nominate judges to the U.S. Supreme Court who strictly interpret the Constitution of the United States. True to his promise, the President nominated John Roberts to become the 18th Chief Justice of the United States. Just as true to his promise, he nominated Samuel Alito to serve as Associate Justice of the Supreme Court.

I was pleased that President Bush nominated Judge Alito, as were many other Members of this body. I reserved final judgment, as most of us did, until we saw the confirmation process proceed. I don’t take the Senate’s advice and consent role lightly. I didn’t want to encourage a rush to judgment.

The hearings have occurred, and I believe Judge Alito has performed admirably. There were 18 hours and 700 questions, and there probably would have been a lot more questions if there [*S63]
had not been the length of the questions, sometimes lasting as long as a half hour.

Anyway, I believe he is worthy of our support. As has been stated time after time on the floor, he earned the highest ratings of the American Bar Association.

Let me tell you what impresses me, Mr. President, probably as much as anything else. It is the strong endorsement Judge Alito got from the people who used to work for him. There is nobody who knows people better than those who work for you. There is a very impressive list of former law clerks of Judge Alito writing to urge the Senate to confirm him. As they state in their letter:

Our party affiliations and views on policy matters span the political spectrum. We have worked for Members of Congress on both sides of the aisle and have actively supported and worked on behalf of Democratic, Republican, and Independent candidates.

And they go on to say in their letter:

What unites us is our strong support for Judge Alito and our deep belief that he will be an outstanding Supreme Court Justice.

That impresses me, when the clerks, the people who work alongside these judges every single day_and it is a very long list; it looks to me like there are 60 to 75 names on there_are all supporting him. As they state, they are of all beliefs and party affiliations. There is no person or persons who know a judge better than those who clerked for him.

Finally, they go on to say:

It never once appeared to us that Judge Alito had prejudged a case or ruled based on political ideology. To the contrary, Judge Alito meticulously and diligently applied controlling legal authority to the facts of each case after a full and careful consideration of all relevant legal arguments. It is our uniform experience that Judge Alito was guided by his profound respect for the Constitution and the limited role of the judicial branch.

That is what Judge Alito is all about from the people who know him best, other than his family. Frankly, that has a significant effect on my view of him.

I will make one other comment. We are dragging out this process for no good reason. We all know what the outcome of the vote is going to be. We have other pressing business, including lobbying reform, which needs to be taken up by this body. We have pending the issue of the PATRIOT Act. There are many issues we should be addressing and at least beginning to work on, rather than dragging out this process. I wish my colleagues on the other side of the aisle would see fit to bring this process to a close and let us vote on Judge Alito and move on to other pressing issues.

The fact that there will probably be a large number of votes on that side of the aisle against Judge Alito doesn’t upset me as much as it saddens me. I didn’t agree with the judicial philosophy of Justice Breyer or Justice Ginsburg. I knew that Justice Ginsburg worked for the ACLU and held liberal views. But I also believe that elections have consequences. The President of the United States-at that time, President Clinton-nominated them as his selection. There were very few-a handful of votes against either Justice Breyer or Justice Ginsburg.

When there is a large number of votes against this highly qualified individual, it is a symptom of the rather bitter partisanship that exists in this body today, and I regret that very much. There are pressing issues, such as Iran and their rapid acquisition of nuclear weapons, which spring to mind. We have to sit down in an atmosphere of mutual trust and respect and work on these things. I will be very sad when I see this large vote against this good and decent American, but, more importantly, I will be upset because we continue to engage in the kind of partisanship which has even been ratcheted up lately on lobbying reform, when we should be working out a common approach and a common cure for a significant illness that afflicts this body and the Capitol today.

If that’s not enough, here’s what McCain told Larry King on CNN on November 20, 2005:

KING: Do you have an early read on Judge Alito?

MCCAIN: I’m very impressed with him. I met with him today. I found him to be extremely forthcoming. I think he’s highly qualified and I really think that he, knock on wood, will have a fairly successful trip here through the Senate. I think he—I judge people on their character and temperament.

I voted for Justice Ginsberg and Justice Breyer even though I disagreed with their political philosophy, I mean their judicial philosophy but they were nominated by President Clinton and he said that he was going to nominate liberal people of that philosophy.

When I ran for president I said I was going to appoint conservative judges as well, Larry. So, I’m very pleased with his progress. I predict to you that barring something unforeseen that he will probably be successfully confirmed.