Will the Federalist Society succeed where the North Vietnamese failed?
In a characteristically overwrought piece, Dahlia Lithwick looks at John McCain's recent adventures in jurisprudence and concludes that McCain has sold his soul to the Federalist Society. Liberals like Lithwick will be spinning out variations on this theme constantly during the next nine months, as they attempt to transform McCain's image from maverick to captive of the far right. Lithwick must have particularly enjoyed developing this theme in the context of her obsession with the Federalist Society.
Lithwick fails, however, to make her case. She bases it on a narrative which starts with McCain getting himself in hot water following credible reports that he had distinguished between John Roberts and Samuel Alito. Reportedly, McCain viewed the former, but not necessarily the latter, as his kind of Supreme Court Justice. To quell the roar of disapproval from conservatives, McCain relied on Ted Olson and Federalist Society co-founder Steve Calabresi. Both assured conservatives that McCain was sound on judicial nominees and, indeed, on judicial philosophy generally. McCain then provided similar assurances in his speech to CPAC. ( Mickey Kaus thinks that this speech leaves McCain an escape hatch, but the statement McCain posted on the Federalist Society’s website is less equivocal).
Thus Lithwick concludes:
The brief furor over McCain's perceived heresy, and the swift corrective by the true powers that be, signals that on Republican judicial appointments there is no longer any space—politically, institutionally, or theoretically—for moderation or independence. What we saw from the elite conservative thinkers this week is a broad promise to John McCain: "We erased Ms. Miers. We can erase you, too."
Put to one side the fact that on Democratic judicial appointments there is no space for moderation or independence. The notion that the Federalist Society could “erase” John McCain once he’s been elected president is paranoid. McCain’s general statements regarding judicial philosophy no more guarantee that he’ll consistently appoint judges that conservatives like than the similar statements of Republican presidents back to Richard Nixon did. The fact that, during a political campaign, conservative lawyers can induce McCain to make such statements hardly suggests that they would be able to intimidate him as president. McCain will eat these guys for lunch if he's so inclined.
Lithwick argues, however, that these days the Federalist Society and like-minded conservative lawyers are the only game in town. When McCain constructs his legal team, she writes, “he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito.”
While this sounds plausible, it does not withstand scrutiny. In constructing his legal team, McCain will likely rely less on Federalist Society types and more on long-time friends like Lindsey Graham (just as President Bush relied on his Texas friends, Harriet Miers and Alberto Gonzales). Under these circumstances, McCain will not necessarily be channeled into picking judicial nominees “from the same movement that produced Roberts and Alito.” Nor, should he decline to so select his nominees, will he necessarily be thwarted the way Bush was with Miers. First, McCain might pick a more formidable maverick nominee, Graham for instance. Second, the Republicans will not control 55 Senate seats, so McCain will have an excuse for rejecting a movement conservative.
Republican presidents collectively have batted about .500 in picking Supreme Court Justices. George Bush looks to have done better, though only with the benefit of a do-over. McCain, with his generally conservative legal views, lack of deep understanding of legal issues, and maverick tendencies too often founded on liberal conventional wisdom, also has the look of a .500 hitter.
