POLITICS

Ready to Do the Right Thing?

John McCain is working to reassure anxious conservatives about his philosophy on judicial nominees.

by Kirk Victor

Sat. May 3, 2008


In 2005, Sen. John McCain, R-Ariz., drew conservatives' fury because as a member of the so-called Gang of 14, he helped engineer a deal to preserve the Senate's power to use filibusters to block President Bush's judicial nominees. Conservatives viewed the maneuver as a slap in the face to then-Majority Leader Bill Frist, R-Tenn., who was determined to ensure that the nominees got up-or-down votes.

Frist was poised to push the button on the so-called nuclear option by seeking a ruling from the Senate's presiding officer that filibusters against judicial nominees are unconstitutional. The floor showdown was averted, however, when the Gang of 14--seven Republicans and seven Democrats--struck their agreement in McCain's office to support filibusters against judicial nominees, albeit only "in extraordinary circumstances." To liberals' chagrin, the deal also called for votes on three of Bush's most controversial nominees, whom Democrats had previously blocked.

Back then, conservative and evangelical leaders singled out McCain for scorn. His leadership in the bipartisan Senate group reinforced their impression of him as an unreliable politician who could not be counted upon to steadfastly support what they saw as paramount conservative principles.

McCain can "forget about his presidential ambitions" in 2008, Paul Weyrich, president of the Free Congress Foundation, told The Kansas City Star at the time. "We had the momentum to win, and [the Gang of 14] insisted on betraying us, and there will be a price for that."

Richard Land, president of the Southern Baptists' Ethics and Religious Liberty Commission, echoed that sentiment, telling the newspaper, "Trust me, conservatives know who to blame, and they will have an opportunity to express their feelings in the primaries of 2008." And Tony Perkins, president of the conservative Family Research Council, predicted to The Star that those who struck the deal would pay a price for their perfidy.

Today, almost exactly three years after that extraordinary parliamentary brinkmanship, the conservatives' raw anger has cooled. And McCain, the presumptive Republican presidential nominee, has begun to work at mollifying his once-fierce detractors. Some of the critics insist that the senator must provide plenty more reassurances about his judicial philosophy to win their total favor. But they also say that the fallout from the Gang of 14's work actually was not so dire.

"Well, I was for the constitutional [or nuclear] option, but we weren't sure that we had the votes for that," Weyrich said in a recent interview. "So, while I sort of disagreed with him ... the net result was better than we had been able to achieve by ordinary means, [because] what McCain ended up doing actually got a few Appeals Court judges confirmed."

Still, Weyrich has not endorsed McCain. Perkins has also not endorsed the senator, in keeping with the tradition of past presidents of his group, but he had some positive things to say.

"The sense I have is that people are eager to want to support him, but they are looking for that catalyst," Perkins said. "They are more than willing to forgive past differences. They are more concerned about the future. I don't think past discrepancies or differences between him and conservatives are deal-killers."

McCain "will have to make a very convincing case that he will choose nominees that have proven track records that they are originalists when it comes to the Constitution," Perkins added.

Although McCain may have to do some more convincing, his work on the 2005 agreement got an unexpected nod from former Sen. Rick Santorum, R-Pa., a hard-charging conservative. "I was in leadership, pushing hard for a showdown with the Democrats on using the 'constitutional option' to end their filibuster of judicial nominations," Santorum wrote in The Philadelphia Inquirer on April 21. "The Gang of 14 broke the impasse, and it probably was for the best. I was the one counting votes on that issue, and I was much less certain of success than others. In the end, the gang deal resulted in numerous confirmations of qualified conservative jurists."

Even those conservatives who worry that McCain is not nearly as resolute as Bush on judicial nominees are pleased that the senator has signed up Ted Olson as a key adviser. Olson's conservative bona fides are stellar. As an assistant attorney general in the Reagan administration, he defended the president during the Iran-Contra affair. He earned headlines and praise for his legal work while representing Bush in Bush v. Gore, the Supreme Court case that all but decided the 2000 presidential contest. Olson then served as solicitor general from 2001 to 2004 before returning to private practice.

Olson, who had initially backed Rudy Giuliani for the Republican presidential nomination, said in an interview that he is confident that McCain would select judicial nominees who would make skeptics on the right proud. "I personally have no doubt this is one area where he will be faithful to what conservatives want him to be," Olson said. "This is not an area where he is anxious to run out and appoint people like [liberal former Chief Justice] Earl Warren or whatever."

Olson noted that McCain's home-state colleague, GOP Sen. Jon Kyl, a conservative who sits on the Judiciary Committee, told him: " 'Ted, right from the beginning, John McCain has come to me for advice and counsel with respect to judicial appointments, and he has never, ever--not once--not followed through on my advice.' That's convincing to a lot of people."

Sen. Jeff Sessions, R-Ala., another conservative Judiciary Committee member, is still miffed at what he sees as the machinations of the Gang of 14. But he has endorsed McCain and said he is pleased that Olson will be advising him.

"Bill Frist worked for a year and a half," Sessions recalled in a recent interview. "He researched the history of the Senate, he studied all that--finally got the 50 votes after prodigious effort on his part. And the Gang of 14 just runs out away from the majority leader and cuts a deal out from under him. They acted like they deserved credit for this great event, but it was because Frist had diligently worked to create the dynamic to allow that kind of settlement. I didn't appreciate it, and I still don't."

"John McCain has never indicated a real passion about judicial nominees," Sessions added, but he "understands the importance of it. I think he's instinctively supportive of judges who'll be neutral umpires, rather than taking sides in the ball game."

He said that McCain had voted "our way on all the big judges questions" and expressed confidence that as president McCain would follow through on past comments that he would nominate jurists similar to Bush's two Supreme Court nominees: John Roberts, who was confirmed as chief justice in 2005, and Samuel Alito, who joined the Court as an associate justice in 2006. "I think he'll be pleased to appoint someone in their mold," Sessions observed. "I would expect that. If he didn't, I'd be bitterly disappointed."

Curt Levey, executive director of the conservative Committee for Justice, noted that he, like many others on the right, strongly disagreed with one of McCain's signature legislative initiatives, the so-called McCain-Feingold campaign finance reform law, which they contend infringes on constitutional free-speech protections.

"Maybe my biggest concern would be his stand on campaign finance reform, and whether he would allow that to affect the judges that he appoints," Levey said. "I am certainly very heartened by the people that he is looking to on the judges issue, such as Ted Olson. That's a very good sign."

According to Olson, McCain will give a speech early this month to set out his views of judicial appointments and to unveil a list of lawyers who have signed up to serve on his judiciary advisory board, a group of prominent members of the bar who support him.

"For many Republicans, the judiciary is the most important issue [in the election]. They don't see a record with McCain," Olson said. The speech, he added, will provide "assurance that he will be the kind of person that they hope he will be, absent a record that gives them much of a clue."

And the conservative doubters will likely come around to McCain, if only because the Democratic presidential candidates--Sens. Hillary Rodham Clinton of New York and Barack Obama of Illinois--are unacceptable to them, Land said.

"For most of the evangelicals and some Catholic social conservatives with whom I have talked ... McCain was not their first choice; he was not their second choice; for many of them he was their third choice," Land said. "But they would much rather have a third-class fireman in the White House than a first-class arsonist. They perceive Senators Clinton and Obama as first-class arsonists."

Still, if McCain really wants to quiet his doubters on the right, Land suggested an idea that he says is sure to work: Put Frist on the ticket as his running mate.

"No. 1, it would really help to heal the Gang of 14 rift," Land said. "No. 2, if Senator Obama or Senator Clinton want to discuss health care reform with Dr. Frist, have at it. He's probably the leading conservative authority in the country on the issue."

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