Between his campaign trail rhetoric and a stable of legal advisors who are well-regarded in conservative circles, McCain is winning over converts who at one time harbored deep suspicions about his commitment to appointing reliably conservative judges.
It’s a surprising turn of events for a candidate who was once booed at the Conservative Political Action Conference and especially for one who played a key role in brokering the “Gang of 14” compromise in 2005, a deal that some conservatives contend undermined the Republicans’ opportunity to ban filibusters against judicial nominees.
This newfound respect is rooted in the widely-held belief that, if elected, McCain will appoint high court justices like George W. Bush appointee Chief Justice John Roberts, rather than David Souter, the George H.W. Bush appointee viewed by conservatives as a deep disappointment due to his liberal to moderate record.
“He has attempted to make it clear he’s going to appoint judges with a demonstrated conservative record,” said Robert Alt, deputy director of the Center for Legal and Judicial studies at the conservative Heritage Foundation.
“I think his general approach will be very consistent with President Reagan and President [George W.] Bush,” said Mike Carvin, a former deputy assistant attorney general under Reagan, who argued Bush v. Gore for the Bush campaign.
A McCain speech delivered May 6 at Wake Forest University turns out to have gone a long way toward mollifying uneasy conservatives, largely because its tone suggested his judicial philosophy is at least as sharply defined as President Bush’s.
“We thought it was the best speech of the campaign,” said Larry Hart, director of government relations at the American Conservative Union. “We were very impressed.”
Curt Levey, executive director of the Committee for Justice, a conservative group, praised McCain’s speech on CFJ’s blog for inveighing against “judicial activism,” and for praising “judicial restraint.”
He lauded McCain for criticizing recent Supreme Court rulings allowing detainees in Guantanamo Bay access to U.S. courts and holding that the death penalty is unconstitutional in individual crimes “where the victim’s life was not taken.”
The campaign presence of former Bush administration Solicitor General Theodore Olson, a heavyweight in the conservative legal movement who represented Bush in Bush v. Gore, has also sent a strong signal.
Olson, who articulated the administration’s view of expanded executive power in the War on Terror as solicitor general, co-chairs McCain’s advisory committee on judicial appointments with Senator Sam Brownback (R-Kansas) and speaks to groups such as the Republican National Lawyers Association on behalf of the McCain campaign.
With Olson overseeing McCain’s selections, some conservatives have concluded that a McCain White House will nominate sufficiently conservative jurists.
“Ted Olson being his key advisor is very promising,” said Hart. “If people like Ted Olson are guiding selection of judges, the outcome will be very good for conservatives.”
“I think a lot of conservatives were concerned early on, during the primaries, but he’s done things since then to reassure us all,” said Levey. “Making Ted Olson his top legal advisor and the speech he gave at Wake Forest—those things reassured us.”
Olson’s job hasn’t been easy though. McCain’s stance on campaign finance reform remains unpopular in the conservative legal community and his “Gang of 14” apostasy hasn’t been compleely forgiven. Still, he has managed to considerably raise the conservative comfort level with McCain.
“Conservatives have been comfortable with assurances that I’ve given them and Sen. Brownback has given them,” said Olson.
A factor that weighs heavily in McCain’s favor is his Senate record. Judicial issues haven’t been his trademark, but he has consistently supported conservative Supreme Court nominees. In 1987 he spoke on behalf of embattled Reagan Supreme Court nominee Robert Bork, saying he supported him “without any hesitation.” In recent years McCain has voted for every one of Bush’s judicial nominees.
“He voted for Alito and Roberts despite the fact that he had to know they would vote to strike down McCain-Feingold,” said Levey. “That addresses the concern that he might not appoint strict constructionist judges who are more likely to oppose McCain/Feingold.”