Dispatches from the Creation Wars

McCain and the Supreme Court

My Talk2Action colleague Bill Berkowitz has an article about McCain echoing the right’s rhetoric about the judiciary and preparing to give them the nominees they want if he takes office. A month ago, McCain gave an address in North Carolina outlining his “judicial philosophy” that was full of all the predictable codephrases designed to appeal to the base that he has had such difficulty attracting – “judicial activism” and “legislating from the bench” and the like. He even threw a little truly extremist rhetorical red meat out there:

In his talk, McCain “warned against complacency, because ‘there is one great exception in our day’ to the smooth functioning of the separation of powers,” The New Yorker’s Jeffrey Toobin reported.

That “great exception”, according to McCain, “is the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.”

That could have come straight from a Robert Bork rant. To make things worse:

Around the same time McCain delivered his remarks in North Carolina, his campaign announced the names of those who would help him select nominees for judicial positions. Heading up the effort are two longtime hard line conservatives, Theodore B. Olson, former solicitor general of the United States, and Kansas Senator Sam Brownback.

I’ve said all along that there has almost certainly been a deal cut between McCain and religious right leaders that promises their support in November as long as he allows them to dictate who he nominates for the Supreme Court. They know that they are just one vote on the court away from achieving the overturn of a wide range of important precedents and they know that the next two and possibly three retirements on the court are likely to be from the liberal wing of the court (Stevens, Ginsburg and Souter – likely in that order). They may not like McCain, but they know they can influence him by threatening to withhold their endorsements.