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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

(Continued from page 1)

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."

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Dahlia Lithwick is a Slate senior editor.
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