JURIST Guest Columnist Carl Tobias of the University of Richmond School of Law says that although all the Republican presidential candidates have recited the GOP litany regarding appointments demanded of every serious contender, John McCain's judicial selection record warrants more evaluation...
Judicial selection has figured prominently in Republican Party strategy for federal elections since 2000, mainly because the GOP leadership thinks that the issue appeals to its base. The four Republican presidential candidates differ minimally in their views on this process. All four have recited the GOP litany regarding appointments demanded of every serious contender.
Because Senator John McCain is now the clear frontrunner, his judicial selection record warrants more evaluation. McCain has invoked the right-wing Republican Party mantras about the process. For instance, the candidate has stated that "one of the greatest threats to our liberty [and] our freedoms is willful judges who legislate from the bench" and has praised President George W. Bush for naming justices "who strictly interpret the Constitution." McCain has concomitantly vowed to select judges who interpret the Constitution and laws and do not "impose their own view as to the best policy choices" or become "liberal judicial activists."
McCain has also taken the mandatory pledge to nominate Supreme Court Justices who closely resemble Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas. For instance, the candidate observed that he had "strongly supported John Roberts and Samuel Alito for the Supreme Court," who had demonstrated fidelity to the Constitution, and "that is why I would seek men and women like them as judicial appointees."
Numerous conservatives attack McCain for helping fashion the "Gang of 14." This collection of senators' 2005 effort stopped the Republican majority from setting off the "nuclear option," that would have prevented filibusters of judicial nominees. McCain opponents fail to remember that this work prevented the Senate from filibustering Justice Alito. Moreover, the endeavor fostered the prompt confirmation of several conservative judges, such as D. C. Circuit Judge Janice Rogers Brown and Fifth Circuit Judge Priscilla Owen.
McCain as well has been attacked for working with Democrats. However, reaching across the aisle may benefit conservatives in the near term. If Democrats win the presidency and increase their Senate majority this fall, conservatives will thank McCain and the Gang for the ability to filibuster nominees whom they find overly liberal.
Candidate Mike Huckabee has remarked: "The role of a judge is to interpret the law, not to legislate from the bench; and as president, I will only appoint men and women who share this view." He correspondingly pledged to "appoint justices and judges who not only share my judicial philosophy (e.g., Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito), but who also have established themselves within the conservative legal community as faithful adherents of originalism and textualism."
Candidate Ron Paul remarked that he "would only appoint federal judges who hold a strict constructionist view of the Constitution, and respected every provision of the Constitution, including the second, ninth, and 10th amendments." Moreover, the candidate promised to "work with Congress to pass legislation limiting federal jurisdiction over issues that the founders intended to be resolved by the states, local government and the people."
When Ohio, Rhode Island, Texas and Vermont Republican residents vote in Tuesday's primary, they must seriously consider the candidates' views on the important responsibility of federal judicial selection. The perspectives which they have articulated are remarkably similar. The appointments record compiled by Senator McCain, the clear favorite, suggests that he nominally departs from the other candidates' views. Indeed, McCain might rectify or temper the accusations and countercharges and divisive partisanship that have attended selection through cooperation with Democrats, who will probably enhance their Senate majority this autumn.
Carl Tobias is the Williams Professor of Law at the University of Richmond