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Alito Is NeatoJohn McCain gets taken to school on judicial picks.

By Dahlia Lithwick
Posted Thursday, Feb. 7, 2008, at 6:07 PM ET

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.

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.

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.

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."

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Dahlia Lithwick is a Slate senior editor.
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