McCain and the Supreme Court
As a follow up to John McCain’s comments during the Saddleback event Saturday night that he would not have appointed any of the so-called liberal justices of the U.S. Supreme Court, regular reader Don sent me an e-mail inquiring whether I knew how McCain had voted on the four—John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
I didn’t know. So I looked it up!
As it turns out, he wasn’t in the Senate when the first one came through, but McCain voted to confirm the other three:
Stevens was confirmed (98-0, by the way) by the Senate on Nov. 28, 1975, 11 years before McCain was elected to the Senate in November 1986.
Souter was President George H.W. Bush’s first nominee to the Court. McCain voted to confirm him in Souter’s 90-9 win on Oct. 2, 1990. The nine votes against Souter all came from Democratic senators.
Ginsburg was President Clinton’s first nominee to the Court. The Senate confirmed her, 97-3, on Aug 3, 1993. Three Republicans (Jesse Helms of North Carolina, Don Nickles of Oklahoma and Bob Smith of New Hampshire) opposed Ginsburg; McCain voted for her.
Breyer was Clinton’s second Court nominee, and he was confirmed 87-9 on July 29, 1994. Breyer’s opponents were all Republicans, but they didn’t include McCain.
So McCain supported all three of nominees for whom he had a chance to vote.
While we’re trying to extrapolate McCain’s philosophy on judges from his record, I figured I’d look at the other nominations on which McCain has voted. They include:
Robert Bork: The Bork nomination was McCain’s first opportunity to participate in the Senate confirmation process, coming 10 months after McCain was sworn in to the Senate in January 1987. McCain voted for President Reagan’s nominee on Oct. 23, 1987; McCain was one of 42 senators supporting Bork in his defeat.
Anthony Kennedy: After Bork’s defeat, Kennedy was Reagan’s substitute, and he got a unanimous confirmation – 97-0, including McCain – on Feb 3, 1988. Kennedy has become the Court’s swing vote—and, some say, the most powerful man in the country.
Clarence Thomas: About a year after Souter, the Senate took up the contentious nomination of Clarence Thomas on Oct. 15, 1991. Eleven Democrats (including, incidentally, Obama VP prospect Sam Nunn) voted with McCain and the Republican minority to put Thomas over the top in his 52-48 win. Only two Republicans – Jim Jeffords of Vermont and Bob Packwood of Oregon – opposed Thomas’s confirmation.
John Roberts: McCain voted for the chief justice in his 78-22 win on Sept. 29, 2005.
Samuel Alito: McCain was also in the majority on Jan. 31, 2006, when Alito won a much closer 58-42 confirmation vote.
So what does this tell us? It’s hard to say. McCain would undoubtedly argue that senators saddled with the responsibility to “advise and consent” have to view potential Court justices from a different perspective than they would if they were making the selections themselves. Each senator has his own criteria, of course, but suitability to serve, experience and judicial temperament are baseline standards from which senators begin to consider nominees.
In recent years, senators have begun to consider nominees’ judicial philosophies. Whether you view this as a positive development depends on your perception of the Senate’s “advise and consent” role. But again, here was an example of a time Saturday when a follow-up question would have provided voters with critical information (the other was when Rick Warren missed an opportunity to ask Barack Obama if he would support Democrats for Life and its 95-10 Initiative to reduce the number of abortions in America): How would President McCain’s standards in choosing Court nominees different from the standards Sen. McCain has used to consider other Court nominees over the past 20 years? Ginsburg would have been a prime example to illustrate the point: McCain would probably be hard pressed to cite one decision where he has agreed with Ginsburg’s judicial philosophy. If he wouldn’t have nominated her as president, what compelled him to support her as a senator?
Another angle would be to look at McCain’s voting record as a whole: McCain has considered eight Supreme Court nominations; he has never opposed one, even though three of the Court’s four “liberal” members came through the Senate after he got there. So the follow-up question would be to ask McCain to detail the factors he considers to be disqualifiers in a potential justice’s nomination. Or, you could combine the questions: As president, what would he consider to be disqualifying factors in Court nominees, and how would those factors differ from whatever standards he’s applied in confirmation deliberations during his Senate tenure?
Maybe we’ll get those questions answered in a regular news-type debate later this fall.
... But I won’t hold my breath.
Anyway, this has been an interesting topic to consider. Thanks, Don, for the question!
