Tuesday, January 29, 2008

Much Ado About Very Little

Those who have been tooling around in the right-wing blogosphere in the past 24 hours or so have probably noted a that a controversy has flared up over some remarks that John McCain supposedly made regarding Justice Alito.  WSJ's John Fund first reported on these remarks, in passing, in a piece yesterday about McCain's relationship with conservatives.  The most relevant paragraphs:

Then there is the issue of judicial nominations, a top priority with conservatives. Nothing would improve Mr. McCain's standing with conservatives more than a forthright restatement of his previously stated view that "one of our greatest problems in America today is justices that legislate from the bench." Mr. McCain bruised his standing with conservatives on the issue when in 2005 he became a key player in the so-called gang of 14, which derailed an effort to end Democratic filibusters of Bush judicial nominees. More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because "he wore his conservatism on his sleeve."

Therein lies the problem that many conservatives have with John McCain. It is the nagging feeling that after all of his years of chummily bonding with liberal reporters and garnering favorable media coverage from them that the Arizona senator is embarrassed to be seen as too much of a conservative.

Not surprisingly, the reputed statement about Alito, which Fund later sourced to three anonymous GOP Senate staffers,  set off consternation among many conservative bloggers.  Those who are vehemently anti-McCain sounded the call to attack the loudest.   McCain has said that he does not remember making the comment, and has offered a response in an interview with NRO's Byron York:

"Let me just look you in the eye," McCain told me. "I've said a thousand times on this campaign trail, I've said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I've said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked."

"I don't get it," McCain continued. "I have a clear record of that. All I can tell you is my record is clear: I've supported these guys. I went to the floor of the Senate and spoke in favor of them. It's in the record, saying, 'You've got to confirm these people.'"

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

I asked about the "wore his conservatism on his sleeve" line. "I'm proud of people who wear their conservatism on their sleeves, because they have to have a clear record of strict adherence to the Constitution," McCain told me. "Remember, in all my remarks, I've said, look, we're not going to take somebody's word for it. You have to have a clear record of adherence to the Constitution, a strict interpretation of the Constitution. I have said that time after time after time."


I'm no fan of McCain (and I'm a huge fan of Alito), but this controversy seems wildly overblown.  There is no doubt that McCain fought hard to get both Roberts and Alito confirmed, and McCain has indeed often cited Alito as a model for the justices he would appoint.  Moreover, at the time of Alito's nomination many (including myself) were concerned that winning his confirmation would be more difficult politically than it was with Roberts, partly because Alito's record was somewhat more defined on some hot button issues (especially abortion).  Of course, those concerns quickly abated after Alito's terrific performance in his confirmation hearings.

There are some valid reasons, I think,  to have some doubts about the kind of judges McCain would appoint (especially McCain's deep belief in the need for upholding and expanding campaign finance regulation).  However, McCain's supposed "conservatism on his sleeve" comment, even if he made it, is not one of those reasons.


Alex said...

Brian, I invite you to post a detailed discussion of the tension between conservatism and campaign finance reform, or to at least point me in the direction of such a discussion. I suppose I don't really know enough about the central speech cases to know exactly how the law stands. My non-legal intuition is that campaign financing has been the source of corruption and scandal and that something ought to be done about it. This may not even be empirically supported.

If the idea is that conservatives are against such reform because of a strict constructionist view of the 1st amendment, then I accept that, and ask if there is a larger philosophical basis for conservative opposition to campaign finance reform, or if it is merely a reaction to judicial activism etc.

Brian said...
This comment has been removed by the author.
Brian said...

Sir, I shall except your invitation. It may be a few days before I can get a good post together, but I look forward to an exchange of views with you on the subject.