COMMENTARY
In addressing the United States Supreme Court, Sen. John McCain, the presumptive Republican nominee for the White House, has bettered the instruction of St. Paul to become all things to all people. The senator’s bewildering contradictions are like simultaneously believing in both atheism and a Supreme Being.
To vote for Mr. McCain in the expectation that he would appoint principled conservatives to the Supreme Court would be rolling dice with the future of the United States Constitution. As president, Mr. McCain’s Supreme Court appointments could be second editions of hyper-liberal Chief Justice Earl Warren and Associate Justice William Brennan, both of whom were appointed by war hero and Republican President Dwight D. Eisenhower.
Mr. McCain has praised former Associate Justice Sandra Day O’Connor. But the praise seems puzzling or uninformed. Mr. McCain is pro-life. Justice O’Connor repeatedly voted to smuggle into the Constitution a pro-choice political agenda. Mr. McCain supports the death penalty. Justice O’Connor regularly voted against capital punishment for minors irrespective of the circumstances. Mr. McCain supports faith-based initiatives and asserts that the United States is a Christian nation. Justice O’Connor routinely voted to heighten the “wall of separation” between church and state. Mr. McCain champions presidential omnipotence in the conflict with international terrorism. In Hamdi v. Rumsfeld, Justice O’Connor lectured that war is not a blank check for the White House. On the other hand, Mr. McCain’s gospel is the Bipartisan Campaign Reform Act of 2002, otherwise known as “McCain-Feingold.” And Justice O’Connor endorsed the McCain-Feingold liberal reform premise that political speech must be suppressed because money is the source of all political evil in McConnell v. FEC (2003).
But Chief Justice John Roberts and Associate Justice Samuel Alito, both of whom Mr. McCain voted to confirm and has celebrated, have denounced McCain-Feingold as a flagrant violation of the First Amendment’s protection of free speech.
As recently as last week in Davis v. FEC, the two voted against the constitutionality of the so-called “Millionaire’s Amendment” that sought to equalize spending between rich and penurious candidates. Moreover, Chief Justice Roberts and Justice Alito voted to renounce the pro-choice constitutional positions of Justice O’Connor in the latest partial-birth abortion case. They have repudiated Justice O’Connor’s views justifying racial or ethnic preferences in the name of educational diversity. They have disparaged her death penalty jurisprudence, and her chronic complacency with the idea that Supreme Court decrees should be moral encyclicals unencumbered by the intent of the Constitution’s makers.
Mr. McCain seeks to cultivate and enlist Reagan-era lawyers with glowing encomiums for the Supreme Court’s conservative equivalent of the Four Horsemen of Notre Dame: Justices Roberts, Alito, Antonin Scalia and Clarence Thomas. At the same time, he prides his membership in the Senate’s “Gang of 14” organized to thwart the confirmation of President George W. Bush’s conservative judicial nominees by a Senate majority as opposed to the extra-constitutional supermajority necessary to end a filibuster.
In sum, Mr. McCain displays no convictions whatsoever about constitutional philosophy or judicial appointments. He is like a man who could dine with Jesus at the Last Supper and breakfast the next morning with Pontius Pilate. If he were sitting on the Supreme Court when Roe v. Wade fashioned a constitutional right to an abortion from “emanations” and “penumbras,” Mr. McCain would have joined both the majority and the dissent while quoting Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”
President Eisenhower came to regret his appointments of Chief Justice Warren and Associate Justice Brennan. He has been widely quoted as having said they were his two biggest mistakes. But the mistakes were not flukes. Eisenhower exhibited no serious interest in judicial philosophy or constitutional theory. Thus, he also appointed Charles Evans Whittaker to the Supreme Court in 1957 despite the appointee’s agnosticism on virtually every non-trivial constitutional question. None of his opinions left even a light footprint in the sands of time. Whittaker’s nomination was at least second cousin to President George W. Bush’s anointment of White House counsel Harriet Miers. And Mr. McCain’s flimsy understanding of the Supreme Court is more reminiscent of Eisenhower than of Ronald Reagan. His appointments would be driven by short-term political maneuvering, not by longheaded concerns over the future of constitutional law.
But a vote for Mr. McCain might still be a safer bet than a ballot for Sen. Barack Obama on judges. Mr. Obama has voiced admiration for former Chief Justice Earl Warren, whose signature questions during oral arguments shunned the Constitution in a quest to discover what was “fair” or “just” after consulting gut instincts in lieu of the cerebral faculties.
In Trop v. Dulles (1958), Warren decreed that the Eighth Amendment’s prohibition on cruel and unusual punishments “draw* its meaning from the evolving standards of decency that mark the progress of a maturing society,” i.e., the Amendment means whatever the justices want it to mean. The Trop precedent gave birth to the Supreme Court’s decision last week in Kennedy v. Louisiana holding the death penalty for raping children unconstitutional.
But unlike Lillian Hellman, Mr. Obama has proven adept at cutting his conscience to fit this year’s fashion. He rebuked the Kennedy decision, and he saluted the Supreme Court’s holding in District of Columbia v. Heller recognizing an individual right to keep and bear arms. Yet in both cases the Court majority rejected every crumb of constitutional philosophy penned by Mr. Obama’s admired jurist, Chief Justice Warren.
In sum, a projection of who either a President McCain or a President Obama would appoint to the Supreme Court would enter terra incognita.
Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.
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