What Would a McCain Supreme Court Look Like?

By Doug Kendall, Huffington Post. Posted February 18, 2008.

A close look at John McCain's Senate voting record on judicial confirmations makes it painfully clear that progressives need to ignore the rantings of the Ann Coulter crowd and believe John McCain when he says he will listen to Sam Brownback and appoint judges like Samuel Alito and Antonin Scalia. On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.

Indeed, one looks in vain for a judge who is too ideologically conservative for McCain: he voted to confirm Robert Bork, Clarence Thomas and, unless I've missed something, every other Republican judicial nominee voted on in his 22 years in the Senate.

Even more tellingly, as part of his negotiation in 2005 of what has been dubbed the "Gang of 14 Deal" (more on this later), McCain pushed, hard, for the confirmation of both William Pryor and Janice Rogers Brown, the two hardest-edged conservatives appointed to the federal bench by President George W. Bush.

Pryor famously said of Bush v. Gore: "I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." As the Washington Post editorialized in a piece called "Unfit to Judge," that statement indicates such a nakedly political view of judging that it alone should have been disqualifying for a lifetime position on the federal bench.

Brown's views were even more outlandish. In speeches given to the Federalist Society and the Institute for Justice, Brown railed against judicial opinions in the 1930's upholding the New Deal as "the triumph of our own socialist revolution." Brown, almost alone among lawyers, openly yearned for a return of the so-called "Lochner-era" in which a conservative court routinely struck down labor, health and safety laws in the early 20th century. In the words of Robert Bork (no liberal he), Lochner is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." No one in the Senate is more responsible for Brown's confirmation to a lifetime seat on the all-important DC Circuit Court of Appeals than John McCain, a fact he touts on the campaign trail.

McCain was also more than willing to rough-up President Clinton's judicial nominees. McCain missed many important votes on Clinton nominees in 1999 and 2000 while campaigning for the White House. But he was present in 1994 and was among just 12 Senators to support a filibuster of Judge Lee Sarokin, a nominee to the Third Circuit Court of Appeals who was rated unanimously "well qualified" by the ABA (the highest possible rating). McCain's decision to side with the likes of Jesse Helms and Strom Thurmond in this vote, and against Orrin Hatch and Trent Lott speaks volumes.

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