WASHINGTON – With four justices in their seventies and Justice John Paul Stevens now 88, it's almost a given that the next president will put his mark on the makeup of the Court. John McCain says he would appoint conservative justices who do not set their hands to legislating.
Although he's butted heads with conservatives during his run for the White House, John McCain is a solid messenger for that influential wing of the party when it comes to his judicial philosophy. "I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint," McCain said in May after wrapping up the GOP nomination.
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McCain says federal judges must adhere to a strict constructionist philosophy and leave the legislating to the legislators.
"He's spoken often about his view of the courts, and the importance for the court to be a court, and not this sort of over-arching super-legislative body," said Sen. Sam Brownback, R-Kans. "He's been very clear on it."
Former Solicitor General Ted Olson agreed. "He has said, repeatedly said, that he respects judges who respect the law and the Constitution, and will try to interpret what was intended when a Constitutional provision was enacted — or a statute was passed," Olson said.
While that message is clear and seemingly unwavering, McCain felt it necessary to deliver a speech focused solely on his judicial philosophy. His May address at Wake Forest University coincided with the announcement of his campaign's judiciary advisory committee, to which he named Brownback and Olson co-chairs.
The speech came at a time when his support among the most conservative members of his party was less than certain. While he may be unwilling to bend from a strict constructionist philosophy, McCain did get involved in a compromise in 2006 that displeased many conservatives.
As a leading member of the so-called "Gang of 14," McCain negotiated an agreement that took some Republican power options off the table in exchange for Democratic promises not to filibuster judicial nominees — except under "extreme circumstances." As president, McCain would hold the power to offer up those nominees. And no potential jurist will be more closely scrutinized than one nominated to the Supreme Court.
During recent terms, the Court has sometimes balanced along a tenuous 5-4 split, and the next president could have great power in reshaping the mix.
That was the subject of a question McCain was asked during August's Saddleback Church forum with Pastor Rick Warren.
"Well, I think that the president of the United States has incredible responsibility in nominating people to the United States Supreme Court," McCain said. "They are lifetime positions, as well as the federal bench. There will be two or maybe three vacancies. This nomination should be based on the criteria of proven record, of strictly adhering to the Constitution of the United States of America and not legislating from the bench. Some of the worst damage has been done by legislating from the bench."
But even if McCain wins in November and gets the chance to make at least one nomination to the Court, it's highly likely the Democrats will still be in control of the Senate. Consequently, any McCain nominee could face a tough fight to actually take a seat on the Court.
"It would be very difficult," said Brownback, a member of the Senate Judiciary Committee. "It was very difficult with Roberts and Alito. You may remember on the lead-up to that this was going to be 'the mother of all battles,' to quote Saddam Hussein on the judiciary. We were going to have a fight and a division. And it was a big fight."
As for whom McCain might nominate, names are too speculative at this point. "In federal and state courts," McCain said, "and in the practice of law across our nation, there are still men and women who understand the proper role of our judiciary — and I intend to find them, and promote them, if I am elected president."
The current Court is made up entirely of justices who have previously sat on federal courts of appeal. When asked in January if he would look elsewhere for his nominees, McCain was open to the idea but a closer look at his answer would suggest it may prove to be a difficult task.
"I think it helps to have had other life experiences for anyone, whether they're in politics, the judiciary, or the legislature or executive branch. I think that's helpful," he said. "But in the case of justices to the United States Supreme Court they have to have a proven record of strict adherence to the Constitution of the United States of America and there has to be a proven record of that."