JOHN MCCAIN HAS COME UNDER HEAVY FIRE from conservatives critical of his alleged apostasies. To be sure, several of his stances–on tax cuts, illegal immigration, campaign-finance reform–stand at odds with the current mainstream of American conservatism. But his opponents on the right are profoundly misguided in their criticism of one aspect of McCain’s record: his record in the fight to confirm conservative judges to the federal bench.
On the subject of judicial nominations, McCain’s critics are a virtual Who’s Who of conservative activism: Robert Bork, Rush Limbaugh, Laura Ingraham, Hugh Hewitt, Mark Levin, and Rick Santorum. But the focus of their criticism is extremely narrow.
They are not, for example, angry at his choice of ideal judges: McCain is a proponent of “strict constructionist” judges such as Antonin Scalia. Nor do they begrudge his votes on contested Supreme Court nominations: He voted for both John Roberts and Samuel Alito, and two decades ago he voted for Robert Bork.
Instead, critics target John McCain for a single incident: McCain’s leadership in preventing Bill Frist and others to attempt to deploy the so-called “nuclear option” to prevent the filibuster of judicial nominations; they criticize his membership in the bipartisan “Gang of 14.” And their criticism betrays a fundamental misunderstanding of both the facts of that fight and the larger principles at stake.
THE SENATE MELTDOWN over President Bush’s judicial nominations was one of the most fiercely partisan standoffs in the last seven fiercely partisan years. From 2003-2005, Senate Democrats relied on the threat of filibusters to prevent confirmation of many of President Bush’s nominations for the federal courts of appeals, including Miguel Estrada, William Pryor, Janice Rogers Brown, Brett Kavanaugh, William Haynes, and Priscilla Owen. Each of these nominees almost certainly would have been approved by a majority vote of the Senate, but each nomination languished under the tactics of the minority. Given that vacancies on the Supreme Court seemed imminent, conservatives desperately sought to bring the nominations to majority votes.
In early 2005, Bill Frist and others seized upon “the nuclear option”: a parliamentary tactic that would have ended judicial-nominations filibusters. Simply stated, Majority Leader Frist would have interrupted debate on the nomination, calling for the presiding officer to bring the nomination to a vote. While filibusters normally continue absent a super-majority vote for “cloture,” the Senate’s presiding officer (most likely Vice President Cheney) would have agreed that further debate was inappropriate, and his decision would then be subject to a majority vote by the Senate. Thus, the nomination debate would end upon the approval of at least fifty Senators and the tie-breaking vice president.
Such a maneuver was almost certainly proper under Senate precedent, as Martin Gold and Dimple Gupta demonstrated in a widely-read article in the Harvard Journal of Law & Public Policy (although the Senate Parliamentarian publicly disagreed). But the mere fact that the nuclear option was a legitimate tactic did not by itself mean that Frist could successfully execute it–and, contrary to wishful thinking by McCain’s present critics, Frist’s plan was destined to fail.
Given the presence of only fifty-five Republicans in the Senate (and the tie-breaking vice president), Frist could afford to lose no more than five votes–and it quickly became apparent that Frist would lose at least six. Roll Call reported that Lincoln Chafee and Olympia Snowe opposed the option, and that Mike DeWine, Lindsey Graham, and Arlen Specter were possible if not likely defectors as well. The Washington Post reported that Susan Collins, Chuck Hagel, and John Warner expressed substantial misgivings about the scheme. And, of course, there was the threat of other surprise defections, just as George Voinovich surprised everyone by suddenly opposing the John Bolton nomination later that year.
Thus, McCain, who also opposed the nuclear option, was hardly alone in his stance; nor was he the deciding vote on the subject. Simply put, for Frist to succeed would have required the political equivalent of drawing to an inside straight in poker: all of the cards needed to fall in place. Multiple GOP senators with a history of bucking the leadership and administration would have had to fall in line, and no surprise defections could have occured.
Conservative activists hoped for success then–and too many still believe that success was a given–but such hopes were utter fantasy. In 2005, the odds were so decisively stacked against Frist that even he and the Bush White House reportedly asked Graham and DeWine to broker a compromise.
IT WAS IN THIS CONTEXT, then, that McCain, Graham, and twelve other Senators entered into a ceasefire agreement that ended the threat of the nuclear option. Specifically, the bipartisan “Gang of 14” agreed to bring to a majority vote three controversial nominees: William Pryor, Janice Rogers Brown, and Priscilla Owen. (Each eventually was confirmed.) They specifically cited two nominees (William Haynes and Henry Saad) whose fates would not be decided by the agreement, effectively killing those nominations. And they agreed that filibusters of all other judicial nominees would be improper absent “extraordinary circumstances.”
Conservatives greeted this development with at best skepticism and at worst outright anger; liberals, by contrast, treated the development as outright victory. But over the course of the subsequent months, the Gang of 14’s agreement proved to be an unequivocal success for proponents of judicial nominations: not only did President Bush successfully seat two conservative judges in the face of vociferous liberal opposition, but he also succeeded in seating a number of controversial lower-court nominees who previously had languished under the filibuster. While the agreement’s “extraordinary circumstances” clause was vague and perhaps even unenforceable, the Gang never allowed it to be used successfully to allow a filibuster–most likely because the Gang of 14 also did not foreclose ultimate resort to the nuclear option in such situations.
Thus, in the end, the Gang of 14’s compromise paved the way for the confirmation of some of the finest conservative judges in recent history: John Roberts, Samuel Alito, Janice Rogers Brown, William Pryor, and others.
IN LIGHT OF THE HISTORY’S CLEAR RECORD, it can fairly be said that John McCain, John Warner, and Lindsey Graham deserve no less credit for the successful confirmation of controversial conservative judges than do Bill Frist and proponents of the nuclear option. McCain’s critics may well have regretted the Gang of 14 deal, wishing to have suffered principled defeat–filibustered judicial nominations, and perhaps even filibustered Supreme Court nominations–rather than pragmatic victory. But McCain, Graham, and the other pro-confirmation members of the Gang took the path most consistent with prudential conservatives of years past: Just as William Buckley and James Burnham once favored “the most conservative electable candidate,” McCain favored “the most conservative achievable outcome.” For that he deserves conservatives’ praise, not scorn.
Finally, it must be noted that McCain’s opposition to the nuclear option did not merely serve short-term conservative interests in the specific context of Bush’s nominations; rather, it served long-term conservative interests in the federal bench generally. As McCain has warned, there will come a day–perhaps soon–when a Democratic president will nominate decidedly non-conservative justices and judges, and a Democratic Senate majority will want desperately to confirm them. When that moment arrives, conservatives will call on the Republican minority to utilize every tool in the Senate minority playbook to thwart those nominations–especially the filibuster. While the McCain’s Gang of 14 cost conservatives the confirmation of William Haynes to the Fourth Circuit and Henry Saad to the Sixth Circuit, its preservation of the filibuster threat may ultimately prevent the ascent of Supreme Court judges that Laura Ingraham and Rick Santorum would dearly regret.
Adam White is an attorney in Washington, D.C. In 2006, he published a law review article defending the Senate’s power to refuse to act on judicial nominations. He does not write this on behalf of his employer. Kevin White is a student at Harvard Law School.
