Monday, February 04, 2008


The big issue in the POTUS '08 race, mostly unspoken so far, is the Supreme Court. The old liberals on the Court have been hanging on for the day when they can retire and be replaced by like minded justices. The WSJ addresses the issue today.

With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the "Living Constitution" -- in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.

I don't want the Court going postmodern.

For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

I think a Republican victory this November is extremely unlikely but I'll be glad to be wrong. I'm not sold by any means on McCain's electability -- the polls showing him beating Hillary are the same polls that gave us President Giuliani a few months ago -- but if he were to get elected, would he appoint good judges?

There is no reason to believe that Mr. McCain will not make excellent appointments to the court. On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His pro-life record also provides a surety that he will not appoint judicial activists.

We recognize that there are two plausible sources of disquiet. Mr. McCain is perhaps the foremost champion of campaign-finance regulation, regulation that is hard to square with the First Amendment. Still, a President McCain would inevitably have a broader focus. Securing the party's base of judicial conservatives is a necessary formula for governance, as President Bush himself showed when he swiftly dropped the ill-conceived nomination of Harriet Miers.

Perhaps more important, because of the success of constitutionalist jurisprudence, a McCain administration would be enveloped by conservative thinking in this area. The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party.

I have to defer to the WSJ on what McCain would do with respect to judges, as I have not done my homework. I don't know what McCain would do, but I do know what Obama or Hillary would do, and I don't want to see that.

I also know that whoever wins the election, my day-to-day life will remain very much the same. I have to accept the world as it is. Sometimes I'm in the majority, and sometimes the minority, and either way, life goes on.

God grant me the serenity
To accept the things I cannot change;
Courage to change the things I can;
And wisdom to know the difference.
Living one day at a time;
Enjoying one moment at a time;
Accepting hardships as the pathway to peace;
Taking, as He did, this sinful world
As it is, not as I would have it;

Trusting that He will make all things right
If I surrender to His Will;
That I may be reasonably happy in this life
And supremely happy with Him
Forever in the next.

UPDATE: Bill Kristol writes eloquently today on the need for conservatives to get behind McCain if he is the nominee, rather than sulk at the margin.

Conservatives can ... choose to stand aside from history while having a temper tantrum. But they should consider that the American people might then choose not to invite them back into a position of responsibility for quite a while to come.


Dude said...

McCain is Bob Dole part two. Of course I will vote for him in the general election since he more closely represents my views, but I couldn't be less excited that he is representing my party. Dude is older than Reagan and ten times less interesting.

Tom said...

Can McCain find a justice that is somehow in favor of McCain/Feingold and not be liberal on other issues.

I think that's why McCain isn't telling us which justices he likes. Bush said that he liked Scalia before he was elected?

Justice Thomas said that McCain-Feingold is the "most significant abridgment of the freedoms of speech and association since the Civil War."

Who is McCain going to cite that wasn't opposed to his prized law?

I think the WSJ is full of wishful thinking on McCain's selections. More importantly, they like his amnesty bill so they don't mind carrying a little water for him.

To be honest, he'd be brokering a deal with Democrats on his selection even if Republicans controlled the senate, to think he would suddenly get tough is a stretch.

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