John McCain gets taken to school on his judicial picks.

John McCain gets taken to school on his judicial picks.

John McCain gets taken to school on his judicial picks.

The law, lawyers, and the court.
Feb. 7 2008 6:07 PM

Alito Is Neato

John McCain gets taken to school on judicial picks.

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John McCain

Conservative loathing of John McCain takes many forms. On the one hand, you have the talk-radio crowd—the Ann Coulter/Rush Limbaugh/James Dobson revolt of folks willing to sit out the election before they'll support the Republican front-runner. Meanwhile, a higher-brow version of discontent has lit up the conservative legal community, and while it sheds very little light on John McCain, it tells us a lot about the state of the conservative legal movement itself.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

When Dobson, Limbaugh, and Co. come out against McCain, their complaint is that he's not a "real conservative." As evidence, they trot out his alleged views on immigration, campaign-finance reform, stem-cell research, and same-sex marriage. Embedded in there is some general sense that McCain hasn't expressed the obligatory conservative horror about so-called "liberal activist judges" drunkenly "legislating from the bench." Further evidence is his participation in the "Gang of 14," which brokered a bipartisan deal when a congressional deadlock over judicial nominations teetered on the brink of nuclear meltdown in 2005. If McCain really cared about judges, they contend, he'd have sacrificed procedural niceties to seat some 'wingers.

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In this vein, last week McCain was outed as someone not to be trusted to appoint "strict constructionists" to the Supreme Court. It started with a piece on WSJ.com by John Fund, reporting that last year McCain "told conservatives he 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.' " Questioned by the National Review Online's Byron York, McCain was quick to dispute that he'd drawn any distinction: "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."

The Washington Post's Robert Novak backed up Fund's version of events, amplifying the story to confirm that in April 2007 at "an informal chat with conservative Republican lawyers," McCain was asked, "Wouldn't it be great if you get a chance to name somebody like Roberts and Alito?" and McCain replied, "Well, certainly Roberts."

"Jaws were described as dropping," continues Novak. "My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative."

The story got traction in the right-wing blogosphere, in part because it suggested McCain was a liar. But for the conservative legal elites, the heart-stopper was something else entirely: What did it mean that McCain was drawing distinctions between Sam Alito and John Roberts, and what did it telegraph about his philosophy on judicial appointments? This looked to be another Harriet Miers moment, in which the conservative legal establishment would have to use their big-boy voices to remind the (potential) president of his constitutional priorities.

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Writing at WSJ.com, Collin Levy suggested that McCain's choice of future Supreme Court justices might be compromised by his interest in appointing justices who would preserve his handiwork in campaign-finance reform cases (the bad kind of activists). David Limbaugh warned that McCain's tendency to conflate "a judicial-restraint philosophy and judicial activism that promotes conservatism" echoes the "liberal line of disinformation that judges like Alito are conservative activists." And Wendy Long, blogging at NRO, urged that McCain had "repeated what the Ted Kennedy / Moveon / People for the American Way crowd said about Alito."

Even Long concedes that what McCain reportedly said makes no real sense, given that (1) McCain neither knows nor claims to know much about courts and the Constitution, and (2) Justice Alito was never seriously believed to be more conservative or even more overtly conservative than John Roberts. It's also worth pointing out—as did professor Stephen Bainbridge—that McCain has been solidly pro-Alito from day one. To the extent that McCain was gibbering about judicial temperament at all that day, he was likely saying nothing more consequential than that he'd take a John Roberts—still widely, if wrongly, billed at that time as a temperate bridge-builder—over someone who looked slightly less jolly. It was a shallow reading of a nondistinction between two movement conservatives. Why all the hoopla?  Isn't the whole thing a silly waste of time?

The conservative legal establishment thought so—and it's so powerful that it papered over McCain's alleged apostasy in two quick strokes: Late last week, Federalist Society titan Ted Olson joined McCain's pit crew, hastily reassuring the troops that—unbeknownst, perhaps, to the candidate himself—McCain had "a deep-rooted conservative philosophy and I trust him to appoint strict constructionists." Days later, Federalist Society co-founder Steven Calabresi co-authored an op-ed in the Wall Street Journal endorsing McCain's candidacy mainly on the grounds that he's electable, while at the same time subtly warning the candidate that he needs the "party's base of judicial conservatives" far more than they need him.

And McCain's much-anticipated appearance at the Conservative Political Action Committee Conference today carefully celebrated Roberts and Alito as men whose "sole responsibility [would be] the enforcement of laws made by the people's elected representatives." Rock that, nasty activist judges.

In a terrific new book, The Rise of the Conservative Legal Movement, professor Steven M. Teles charts the success of the conservative legal establishment over the past several decades. Digging past liberal clichés about an all-powerful Federalist Society tree fort, Teles charts a complicated countermobilization that took place in legal academia and conservative public-interest law, against law schools and a government in thrall with liberal ideas. He chronicles the rise of a multifaceted organizational and institutional structure that has become the only game in town. Despite some missteps, today's conservative legal movement has become as powerful as it is through coordinated and careful effort.

The practical upshot is that when McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito. The only thing that really matters now is that McCain has already agreed to fall in line. That degree of intellectual and institutional control should be comforting to Novak and Long, even as it should scare the pants off Democrats.

In the Calabresi op-ed, co-authored with John McGinnis, this same point took the form of a warning: As a result of the "success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area." The authors remind anyone who needs reminding that "the strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party." Calabresi and McGinnis also made a point of calling up the ghost of Harriet Miers. The brief furor over McCain's perceived heresy, and the swift corrective by the true powers that be, signals that on Republican judicial appointments there is no longer any space—politically, institutionally, or theoretically—for moderation or independence. What we saw from the elite conservative thinkers this week is a broad promise to John McCain: "We erased Ms. Miers. We can erase you, too."