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Getting Janice Rogers Brown on SCOTUS would be worth McCain on a bad day by light-years.

The flip side of this is what would happen under Obama...

*shudder*

will be the number of D Senators. With 45 Ds, Bush had a hard time putting JRB on the appellate court. With 55 Ds, there is no way anyone could get her on the Supreme Court.

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We hear that if we neglect to vote for him, and he loses then we lose the court. My fear is that we will lose it anyway.

He will at best be able to put another Souter on board, and there is not much difference between a souter and a Breyer.

"Nothing works like freedom, Nothing succeeds like liberty"
Kyle

But McCain was a Souter critic, said he didn't like stealth nominees.

At worst, I expect McCain to appoint another Kennedy. And I think another Rehnquist is more likely.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

Souter was an unknown. My guess is a solid D congress would mean McCain would have to nominate an older nominee (what Clinton did with Ginsburg, examples would be Posner or Olson) or an unusual nominee (like a non-sitting judge like Sen. Hatch or Cornyn). I also think an eclectic is more likely than an activist. Someone like Judge Kozinski.

Bottom line, I think there is virtually no evidence that McCain would appoint the same people Obama would appoint.

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POSNER.

He's brilliant and I sometimes agree with him, but he simply is too unpredictable, and could easily give conservatives a reputation for activism as well, since he's something of a libertarian activist from time to time (although that's mostly just in theory, it does sometimes come into practice).

Olson would be great. I think he'll live another 25 years anyway.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

SC will be MUCH higher profile. It'll be harder to block an articulate, likable black woman.

I admit its unlikely, but it's not impossible.

That said, I think there are a number of other nominees that would be harder to block that I also think would be great SC nominees.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

This in particular is an area in which the Dems have exploited the GOP's unwillingness to play nasty and hard and make a public fight.

If McCain will nominate exactly who he wants to, for both appellate and SCOTUS nominations, then early, often, and with fire in his pants take his case directly to the American people, the Dems will have the spotlight directly on them and will be put in the position of explaining why they are using partisan standards to deny ABA-certified (make that LEFT-WING suck-off HACK wenies ABA-certified) "well qualified" judges from being promoted to positions they are obviously qualified for.

As much as I waffle on McCain for reasons we all know, I have no doubt that he has the gall, the in-your-face go-for-it-punk attitude to not only try it, but to carry it off.

Kill the terrorists
Protect the borders
Punch the hippies -- Frank J

And please, for the love of God, don't say G14.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

Yeah, having a great record, deep understanding, good advisors, and the ability to explain those views well is evidence that he doesn't believe a word of it. And McCain has such a track record of lying about his fundamental views too.

What is your evidence that he is giving full speeches full of lies and distortions? Or are you just whining because it feels good?

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I would urge both of you look back and see his great efforts to make them happen when he was in a position where he could. Yes and while we did finally get Janice Rogers Brown on the bench just what is the number that were benched in the bad way ?

I have looked in very deep detail about Sen. McCain and his whole record on judges. I understand concerns about global warming and campaign finance issues. But McCain is rightly baffled that people don't trust him on judges. He has a long, strong record on judges especially considering he doesn't have a legal education. On a spectrum of McCain views, judges are near the far right of the spectrum while campaign speech is near the far left.

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Or at least correct.

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When you start with the premise that he's a squishy moderate/liberal Republican with antipathy towards conservatives and warm feelings toward Democrats, which many of us do, then it's up to him to convince us that he's not a squishy moderate/liberal on judges.

And on the whole, the record is mixed. I know from your diary that YOU believe that the Gang of 14 debacle was a net plus. And frankly, I'm baffled how anyone looking at it could come to that conclusion. McCain misrepresents it as well in his speech, and honestly that's the worst part of his speech. Much of the rest of the speech is good, but when it's balanced with his squishy moderateness, it's not particularly convincing.

Without McCain and his cronies, there were 3 possible outcomes.

1. Democrats filibuster. Nuclear option succeeds. Roberts/Alito plus a ton of good judges that didn't make it in, make it in.

2. Democrats filibuster. Nuclear option fails. Roberts, at least, makes it in no problem, Alito possibly not. But there are two benefits to this scenario. One is a fired up base in 2006 rather than the discouraged base we had then. The other is identifying those Republican senators who need well-funded primary opponents at all costs.

3. Democrats choose not to filibuster to not risk the nuclear option. Same outcome as #1.

So in two of the three possible outcomes we'd be much better off today than without it. And you can make a plausible case that the third outcome is only slightly worse. And honestly, in my view, the most likely outcome was #3, after a symbolic filibuster for a few days to appease their base.

Instead we had a discouraged base who stayed home and didn't donate in 2006, and many of them aren't back yet.

All this was easily predictable back then (and in fact, was predicted). So if he's baffled by this, he needs better advisors.

He should know something about being filibustered.

here

There is no way you can look at that agreement as a Democratic victory. Two days after the Deal was announced, Owen was confirmed by the Senate. Two weeks later, Brown was confirmed, and the next day the Senate confirmed Pryor. These confirmations were exactly what President Bush and the Republicans had tried to accomplish for five long years and the Democrats had blocked.

The confirmation of Chief Justice Roberts and Associate Justice Sam Alito –two exceptionally capable and conservative jurists– were made relatively easy because of the “Gang of Fourteen Agreement.”

that 2 of the possible 3 outcomes without the Gang of 14 are better, or no worse, and the third possibility was only slightly worse, but with a number of benefits. It may not have been a Democrat victory, but it certainly wasn't a Republican one. A victory for a small minority in the Senate who wanted to be a ruling cabal on this issue? Yes.

The problem is that options 2&3 are pure fantasy.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

because he voted to confirm so many of Clinton's nominees, including his SCOTUS nominees.

SO DID the VAST majority of Republicans. Ginsburg was confirmed 96-3 and Bryer was confirmed 87-9.

Sorry, there is just no logic or reason to not trusting him based on this.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

Do you plan to make the case that Republicans were right to confirm them, or do you just want to go with the teenager "everybody's doing it" defense?

www.republicansenate.org

It was not the Republicans who politicized Supreme Court nominations.

Historically, the Senate would give its consent to whoever the President nominated, so long as they were found to be qualified.

It was the Democrats who, with Robert Bork, started this practice of rejecting judicial nominees for their
"wrong" political philosophy despite their excellent qualifications.

So the question is what should Republicans have done with Ginzburg? Retaliated in kind for Bork, or continued to maintain the tradition of granting leeway to the President as long as the nominee was qualified?

The fact that the Democrats have dragged Supreme Court nominations into the gutter (Bork, Thomas, etc.) doesn't mean that Republicans should emulate them.

The left converted the Court into 9 kings who took away the will of the people to socially engineer the country to their design.

We have our party to blame--Souter, Stevens, and so on...

Correct.

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist – jurists of the highest caliber who know their own minds, and know the law, and know the difference." - John McCain

This is at least a more reasonable defense than "everybody's doing it", but I would still dispute that they were right. It is not simply preferable that judges make decisions based only in law. It is their responsibility to do so. Judges have no authority to make rulings based on foreign law, "penumbras and eminations", or their own personal experience, and those who do so should be removed from the bench, not given promotions. It is absolutely fair enough when judges reach different conclusions in their efforts to apply the law. It is not so when judges engage in judicial gymnastics in an effort to write their own personal views into the Constitution.

www.republicansenate.org

then judges are going to inevitably write theor own personal views in the Constitution.

People have to learn to accept that the Constitution is silent on most issues. However, any judge who is not purposely striving to be conservative will "write their own personal views into the Constitution." This is why moderates make conservatives nervous.

"wish he had been saying it for years."

For someone who is not on the judiciary committee and is not a lawyer, he has said stuff in the past. If you haven't read it, I really recommend my diary on McCain's full record on judges. Specifically, his comments on Souter as just a back-bencher are heartening.

As I said upthread, I think there are good reasons for conservatives to worry about campaign finance, immigration, and global warming policies from McCain. But the combinations of his record, his comments (for years), and his promises all point in the right direction. Judges are one issue (along with anti-earmark and strong military support) that he has been solid on for years.

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With the exception of the Souter comment, all of the quotes you mentioned in the piece are from this Republican primary campaign. I'll let the Gang of 14 thing go for now because we're just in different places on that one. I also don't want to get into my other concerns with McCain, none of which would be deal-breaking in the way that the issue of appointments (I'll include his VP pick in this) could be.

His votes to confirm liberal Justices who are currently serving on the Court are extremely troubling, especially in light of the reason to which most would likely attribute it, i.e. comity. You've spoken about his votes on many of Bush's nominations, and I can appreciate that as far as it goes, but if past is predicate, I can't help but be a little antsy that he would compromise again given how difficult it will be to get a Roberts, no less an Alito, through a heavily Democrat Senate. Like I said, his speech today was helpful, but it would be a relief to hear him acknowledge some responsibility for allowing those with no respect for the Constitution to sit on the Court and to hear him say that he will not repeat the same mistakes.

I know you're highly confident about him and are probably increasingly frustrated with those of us who aren't, but there are things that some of us find harder to get past than you do. (I say this assuming that you would agree that he should have bucked his Party and voted against at least Clinton's SCOTUS nominees. If I'm wrong, please correct me.)

www.republicansenate.org

and the Senate should confirm qualified nominees. That's my view as well. Ideology should not be part of the vote. On the other hand, since Ds have decided that ideology is part of their vote, I would not fault Rs at this point for voting on ideology. But I don't think in the 90s it was wrong of Rs to think that Bork/Thomas were an aberration. That is no longer true now.

"it would be a relief to hear him acknowledge some responsibility for allowing those with no respect for the Constitution to sit on the Court and to hear him say that he will not repeat the same mistakes."

I don't think he regrets deferring to the President on nominees he would never have appointed. He sees the Ds ideological test as an abuse of power. I can understand a different view, but this doesn't make him some kind of O'Connor lover.

My problem is that a lot of people seem to think that McCain secretly wants to appoint a bunch of Souters and Kennedys. I think that's a very uninformed view and it does frustrate me.

I understand concerns that judges might not be a priority or concerns that 55+ Ds in the Senate might tie his hands. But those are true of any of the Rs this year. I also think we should be rewarding Rs with a strong track record with the benefit of the doubt. And I don't think in the context of the 90s when only 3 or so Rs were opposing Clinton's nominees, it should be held against someone for believing that deference to qualified nominees was still how things worked. Naive maybe, but not evidence that the person really wants a bunch of Souter/Stevens type judges.

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Judicial nominations aren't an ideological issue, or at least they shouldn't be. If McCain wanted to nominate people with Ralph Nader's ideology and Antonin Scalia's restraint, that would be fine by me. If they don't demonstrate that restraint, though, they are unfit for the federal bench. If the President doesn't act accordingly, the Senate should.

www.republicansenate.org

I used ideology when I meant judicial philosophy, specifically the philosophy that one's personal views should not impact their judicial decision-making.

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The biggest factor about which judges get nominated is who is the President. McCain and Obama's group of possible nominees do not overlap at all.

The second biggest factor is how many D Senators there are. That is what people concerned about judges should be focused on. But if you think McCain appointing with 55 D Senators would be bad, think about Obama appointing with 55 D Senators.

"Frankly I think conservatives are gullible thinking McCain will be anything other than a Clinton/Ford type moderate on both judges and domestic policy."

That's a different contention. McCain will be constrained but there is no evidence that he wants to appoint Souters or Kennedys. And there's no reason to think someone's view on global warming means they don't understand why judges should follow the law instead their own political opinion. Every piece of data we have shows that McCain understands and cares about that.

As far "comments about Alito," I recommend you read that section of this diary. I think the better analysis of the "wears his conservatism on his sleeve" is much better for conservatives. McCain had said, in private, he liked Roberts and Alito jurisprudentially but preferred Roberts because he was more confirmable since Alito "wore his conservatism on his sleeve." Since this was in private, it's even more heartening that McCain would complement their legal philosophy. Unsurprisingly, he cares about confirmability just like Bush.

I think all the evidence we have shows that McCain would be very much like Bush on judges and I think that was one of Bush's big successes.

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Nobody, that I know of, anyways, is saying that he *wants* to nominate Kennedys and Souters. In retrospect, I'm sure that Reagan and Bush Senior didn't want to nominate them. It's simply that we expect that to be the *result*, given McCain's political tendencies and the makeup of the Senate.

As for the "conservatism on his sleeve" explanation, it just doesn't wash. It's clearly, to me, a made up spun answer to try to do damage control.

"I asked whether McCain had ever drawn any distinction between Roberts and Alito. "No, no, of course not," McCain said."

At that point either McCain is prevaricating, or the multiple reports from lawyers at that meeting are wrong. Those are the only two options. And since it wouldn't be the only case where he conveniently misremembered what he'd said when it turned out to be politically damaging, I know which one I believe.

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I agree with one part of this. If Obama wins, 2 or 3 retirements. If McCain wins, Souter and Ginsburg wait it out. Stevens may have no choice in the matter but he will try to wait it out. OTOH, if there are enough D Senators, Souter may leave anyway (rumor is he doesn't like the job or DC at all).

I disagree that Scalia will retire, at least not in a first term. He loves what he does and I don't see why he'd quit before he felt like he had to.

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fights with the left is to just roll over and play dead. He fought you all a little on Roberts, Alito, Bolton, and Iraq. He rolled over for Kennedy on NCLB, and hasn't actually fought for much of anything else including his judges. He won't defend himself from the garbage you all throw at him. What do you want from the man?

On the other hand, if you think Ginsberg is center-left, that is probably where your problem is. The general counsel of the ACLU isn't generally considered center-anything.

he fights with them because they are simpletons who keep coming back and keep getting smacked back down....hmmm...got Alito...got Roberts...oooh and my favorite the Congress who tried like 46 times to pass something to make the President pull out of Iraq...losers....he is so brilliant and the simpletons think he is stupid....I always loved that line of attack against him.

Here's the best Bill Kristol while doing his book on President Bush noted that he does not misspeak nuclear in private...only when speaking to the press and of course that just furthered the idiots on the lefts belief that he was stupid....smart guy!

Freedom of Religion not Freedom from Religion

"Frankly I think conservatives are gullible thinking McCain will be anything other than a Clinton/Ford type moderate on both judges and domestic policy. You seem to think that Republican Primary McCain is the real McCain. I am more inclined to think its the McCain-Kennedy/McCain Feingold/"agents of intolerance" McCain."

"he'll throw us a smelly bone, and the results will be no different than if a democrat were in the white house. NO different."

n/t

following two fundamentally true observations:

(1) many appointments to the SC by Presidents aiming to put conservative justices on the court have turned out to be disappointments

(2) there is less confidence in McCain when it comes to conservatism than there has been of a Republican nominee since Ford

In other words, people are waiting to be disappointed.

When you factor in that:

(3) the democrats will almost certainly gain seats in the Senate

It is hard to have any confidence at all that a conservative Justice could make it through even if McCain put everything he had into doing so.