McCain Makes a Promise About Judges

At CPAC, Senator John McCain promised:

I intend to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.

This promise was absolutely critical if McCain was to win over conservatives.

To be sure, Presidents all too often break campaign promises. Remember George Bush 41's "read my lips" pledge on taxes?

In the new media environment, however, it's getting easier to hold a President's feet to the fire. Remember George Bush 43's aborted nomination of Harriet Miers to the Supreme Court?

Those of us who waged war against Miers succeeded in part because in the 2000 campaign Bush had explicitly promised to nominate justices in the mold of Scalia and Thomas. We demanded that Bush keep that promise and, as it became clear that Miers was made from a different mold, we kept up a steady drum beat of criticism. In the end, we won. Miers was forced to withdraw and Samuel Alito became the newest member of the Supreme Court.

If a President McCain were to nominate a David Souter clone, the right's netroots would have a collective conniption fit that would make the Miers fight look like pattycake. We might not win, but we'd at least bleed McCain of enough political capital to give even Warren Rudman second thoughts.

All of which suggests that threats by conservative pundits like Rush Limbaugh and Ann Coulter to take their ball and go home if McCain is the nominee make no sense (and I say this as someone who has made similar rumblings in the past). The next President likely will nominate 3-4 Supreme Court justices and 200 to 400 lower court judges. Given the astonishing longevity of Supreme Court justices, moreover, the next President's Supreme Court picks easily could serve for two or more decades.

To consider the full implications of this prospect, consider just one of the names that appears on most short lists of prospective Democratic Supreme Court nominees: Harold Koh, dean of the Yale Law School. (YLS professor Kenji Yoshino reportedly quipped that he was hedged for 2008, because "either the Democrats will lose and Yale will keep Harold, or the Democrats will win and Yale will loan him to the country.")

What would a Justice Koh's jurisprudence look like? Jeffrey Rosen notes that Koh "has supported the idea that U.S. courts should expansively apply international legal precedents without the authorization of the president and Congress." John McGinnis (.pdf) likewise observes that: "Harold Koh in fact would like to cabin American exceptionalism through the use of transnational materials to assure that American principles would cohere more with the rest of the world." The increasing use of such precedents by the left wing of the Supreme Court, of course, has been a major irritant to conservatives.

Andrew McCarthy and Doug Kmiec have both raised concerns that a Justice Koh would handcuff the police and intelligence community by judicial fiat. A Law Blog reader quipped that, "other than that he'd be a sure vote for declaring Gitmo detainees have a constitutional right to Social Security benefits, I do not see the appeal."

On a related point, consider his strong support for keeping military recruiters off the Yale campus. as the Yale Daily News reported, "despite a 8-0 smack down by the Supreme Court in the military recruiting case Rumsfeld v. FAIR, Koh still refused to grant ROTC equal access to the Law School."

There can be no doubt but that Koh would be a liberal activist of a stripe we haven't seen since Brennan and Marshall. There can be no doubt that he'll be at or near the top of the list in an Obama or Clinton presidency.

With the CPAC promise on the record, anybody who thinks John McCain would nominate Koh or anybody remotely near him on the ideological spectrum is suffering from such an extreme case of McCain derangement syndrome that they're beyond the help of even modern pharmapsychology.

Stephen Bainbridge is the William D Warren Professor at the UCLA School of Law and blogs at www.ProfessorBainbridge.com