- The Washington Times - Monday, June 23, 2008

NEWS ANALYSIS:

For decades, Republican presidential candidates have rallied the party’s base by warning against a federal judiciary filled with liberal appointments, but many conservative activists and pollsters are skeptical that the issue will work well for Sen. John McCain.

Long-standing distrust of Mr. McCain and the composition of the Senate fuel the conservative doubts, although some Republicans think the judges issue can help their party win the White House, particularly in light of the recent 5-4 decision that gave foreign terrorism suspects at Guantanamo Bay the right to go to court.

Among those noting doubts about Mr. McCain’s conservative bona fides was Sue Lowden, chairman of the Nevada Republican Party.

“So far, the thought of liberal appointments to the Supreme Court has not energized our base here in Nevada,” she said. “We have many in Nevada who are part of the Ron Paul brigade. They would rather lose the presidential election than have McCain.

“Maybe McCain will catch fire, if he comes more often,” Mrs. Lowden said. “We are a swing state, and I’m worried.”

Rob Haney, a Republican Party committee member from Arizona, Mr. McCain’s state, said any judicial appointments would have to pass muster with a Democrat-led Senate. Under such a scenario in 1987, President Reagan had to replace his Supreme Court nominee, Robert Bork, with Anthony M. Kennedy.

“With the probable Democrat gains in the Senate, coupled with the liberal Republicans already there, such as Olympia Snowe, Susan Collins, Arlen Specter, what does it matter that McCain says he will appoint conservative judges?” Mr. Haney said. “He will take what the liberals give him.”

Mr. Haney is a vigorous critic of Mr. McCain on immigration and campaign-finance issues and said the presumptive Republican presidential nominee is not the man of the right he claims to be.

“He can say he kept his promise to appoint conservatives because the judges are just as conservative as he is,” he said. “And he has already told us how conservative he is.”

Others are less skeptical.

“Everywhere I go, I start my remarks by saying: ‘The most important issue in the presidential election we have as well as our greatest opportunity is judges, judges, judges. Their decisions will extend the McCain presidency long past his term of office. These judges will help fulfill a conservative dream going back some 30-plus years when Richard Nixon nominated William Rehnquist to the Supreme Court,’” said Bruce Ash, an Arizona member of the Republican National Committee. “Wherever I speak, these words bring down the house.”

The issue dates back to the “Impeach Earl Warren” billboards of the 1950s.

Longtime Republican Party pollster Ed Goeas sees little evidence over the years that the judicial argument is successful. He noted that Republicans leaned heavily on the issue during the 1992 and 1996 election campaigns and were defeated both times.

“I have never seen it have much impact,” Mr. Goeas said. “The political environment is so driven by big issues: the war in Iraq, the economy, gas prices and health care, and I do not see this really surfacing in any substantial way.”

Thomas G. Del Beccaro, vice chairman of the California Republican Party and author of the book “The New Conservative Paradigm,” said that “in the elections of the last 50-plus years, I never referenced a candidate’s judicial positions as being dispositive of an election.”

“Five years from now, I doubt you or I will think that is what made the difference in this election,” he said.

Independent pollster John Zogby cites other historic precedent but agreed with Mr. Goeas and Mr. Del Beccaro that the issue was not overwhelmingly defining.

“I believe that Ronald Reagan used judicial appointments effectively against Carter,” Mr. Zogby said. “Although stagflation and the Iranian hostages were the dominant issues, conservatives were rallied effectively on this issue, especially since Jimmy Carter appointed more lower court federal judges than anyone else.”

The liberal judiciary “was a rallying cry for the current President Bush in both of his close elections, especially since conservatives smelled blood on the issue of partial-birth abortion,” Mr. Zogby said. “But were these defining issues? No.”

Republican pollsters and insiders said noted that the president’s power to appoint judges likely will not rally conservatives for Mr. McCain but could become a negative issue against Sen. Barack Obama of Illinois, the presumed Democratic nominee.

“The only chance would be that it becomes a part of the judgment issue with Obama,” Mr. Goeas said. “That has developed as a problem with Obama, and I only think it is going to get worse.”

Sal Russo, a California-based consultant who served in the Reagan White House, said that “with Obama, his judges will probably keep us from a solid conservative majority for at least 20 years. If we get McCain, at least there is a decent chance we will get a more reliably conservative court for the next decade or so.”

However, Mr. Russo cautioned about “no guarantees,” noting that the California Supreme Court that found a right to same-sex marriage has six Republican appointees and one only Democratic pick.

Although the presidential power to appoint the federal judiciary “will never make it into voters’ consciousness in a material way,” Mr. Russo said, it remains a critical issue.

“It matters because it should motivate conservative leaders to put their angst over McCain aside and get busy to elect him,” Mr. Russo said. “I have to tell myself that too since I haven’t contributed to his campaign either.”

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