John McCain’s campaign seems to enjoy momentum right now, but if it falters down the stretch, McCain can find strength on the bench.
One of the only lines that received enthusiastic applause from delegates during the flat first half of John McCain’s Republican National Convention speech last Thursday came when the nominee said his party “believes in the rule of law, and judges who dispense justice impartially and don’t legislate from the bench.”
Earlier that same day Senate Minority Leader Mitch McConnell, R-Ky., predicted to a group of bloggers that the Senate would confirm not a single new federal appeals court judge the rest of this year, after having approved only 10 so far this Congress. The average number confirmed during the last two years of a president’s term is 17.
“That is an appalling record,” McConnell said. “My counterpart [Senate Majority Leader Harry Reid, D-Nev.] did not keep his word to me that we would at least match the record of previous presidents.”
Then again, McConnell repeatedly has threatened serious reprisals for Democratic obstructionism on judicial nominations, only to deliver a few annoying parliamentary delays that serve more as protests than as punishment against Reid and his compatriots.
John McCain can change that, and would benefit politically in two different ways from doing so.
The first advantage would come from re-emphasizing his bipartisanship in contrast to Barack Obama’s extreme record of toeing (and towing) the party line. Obama’s vote against Chief Justice John Roberts Jr., when even Vermont’s liberal Democratic U.S. Sen. Patrick Leahy voted to confirm Roberts, looks particularly churlish and partisan in retrospect.
Roberts consistently has enjoyed a net favorable rating in the polls (by 10 points in a July Quinnipiac University Poll, for instance) – and, as former U.S. Solicitor General Ted Olson noted last week, Obama has been forced by public opinion to approve the positions taken by Roberts this year in high-profile cases on gun rights and on the death penalty for child rapists, while opposing the position taken by the judges Obama himself cites as models, Ruth Bader Ginsburg and Stephen Breyer.
Obama will have a hard time explaining why he voted against a justice as popular as Roberts, and why he supports his party’s continuing obstructionism of judicial nominees so qualified as to earn endorsements even from liberal newspapers. It reinforces the idea that he is less an agent of change than a partisan hack – or, as columnist George Will described Obama’s positions on judges a year ago, “like just another liberal on a leash.”
The second edge to McCain is on the substance of court-related issues. Conservative interpretations of the Constitution tend to be more popular than liberal ones. On private property rights, partial-birth abortion, judicially imposed gay marriage, and a host of other subjects decided by the courts, McCain’s favored judges reach decisions much more popular than do the jurists Obama prefers.
And if you match up McCain’s stated preference for judges who show restraint against Obama’s stated preference for judges with the right “empathy” for the job, the McCain position would win in a landslide.
All of which leads to an opportunity for McCain if his campaign hits the doldrums and if Senate Democrats do indeed refuse to confirm more judges in the next several weeks. McCain could hold a major campaign event, and perhaps back it with a campaign ad, demanding that another two or three nominees be confirmed.
He should focus on former acting Attorney General Peter Keisler, whose nomination has been supported by multiple editorials in both The Washington Post and the Los Angeles Times – both of them hardly house organs for conservative causes. And those favorable editorials came before documents surfaced showing that Keisler bravely had opposed Bush administration efforts to politicize the hiring of “career” employees at the Justice Department. McCain could thus highlight Keisler, a moderate conservative, while bolstering rather than undercutting McCain’s own reputation for independence from the unpopular Bush White House.
If McCain challenged Obama to use his weight with Democratic colleagues to confirm Keisler, Obama would be in a bind: Accept the challenge and anger his liberal “netroot” supporters, or decline it, and make independents see him as a man putting liberal ideology ahead of demonstrated merit.
McCain would win that challenge either way.
Quin Hillyer is associate editorial page editor of The Washington Examiner.
