With John McCain's emergence as the front-runner for the Republican nomination, there has been much discussion about the kind of judicial appointments he would make. For issues related to crime, judicial appointments are the single most important aspect of presidential authority. The federal government has relatively little to do with protection from and prosecution for crimes against individuals. Federal prosecution is more appropriately directed to terrorism, drug smuggling, and other specifically federal areas. However, the federal courts have a great deal to do with how prosecutions are conducted in state courts. Judge Henry Friendly warned us over four decades ago that the Bill of Rights was being transformed into a detailed code of criminal procedure. Judicially created rules that are not really in the Constitution and often have nothing to do with the reliability of the verdict -- and in some cases actually obstruct the search for truth -- operate to defeat the cause of justice every day in American courtrooms. Will the next President appoint judges who will take us further down that path or judges who will realize we have already gone too far?
Last week, John Fund kicked up a fuss with a story that Senator McCain had said that he would appoint judges like John Roberts but not like Samuel Alito, because the latter "wore his conservatism on his sleeve." There are multiple posts on National Review's Bench Memos. McCain says he doesn't recall saying that, he touts his record of supporting Alito, and he reaffirms that Alito is the kind of justice he would appoint. Libby Quaid has this story for AP. (The remark is factually wrong, of course. Alito isn't really much, if any, more conservative or more publicly so than Roberts. He is less smooth and polished, much like McCain is less polished than Mitt Romney. That isn't necessarily a bad thing.)
Collin Levy wrote on Thursday in the WSJ that "conservative court watchers are questioning whether [McCain] could be trusted to fill seats on the Supreme Court." To relieve these fears, Sen. McCain should go beyond naming examples and make clear his position on the Great Question of constitutional law:
In the context of judicial review of statutes, what is the nature of the Constitution? Is it a contract between the people and their government, to be enforced according to its terms as understood by the contracting parties at the time? Or is it a portal for wise, wonderful, black-robed platonic guardians to plug in to a Jungian cosmic consciousness, decide what is truly best for the great unwashed, and ram it down their throats whether they agree or not?
Many conservatives were deeply concerned with the nomination of Harriet Miers because, after reading every word of every published article she had written, we still had no idea what she thought of the Great Question. I had the deeply unsettling feeling that she hadn’t thought about it at all.
America’s law schools and bar associations are deeply committed to the second, wrong answer to the Great Question. A justice who sticks to the right answer will be flamed in the law reviews and will be persona non grata at ABA conventions. Sticking to the right answer, and not “evolving” to the wrong one, requires backbone and commitment.
A candidate seeking conservative support needs to make clear that he understands the Great Question, understands the answer, and is committed to appointing judges who are committed to the right answer.
Just as I finished this post, I received an email from the Federalist Society that they have an online debate among the candidates on the subject of judicial appointments. Senator McCain's submission is encouraging.