Strengthening Constitutional Self-Government

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Over at First Things, Rick Garnett writes that "the election of President Obama has turned out to matter a great deal for the future decisions and direction of the Supreme Court."  True enough, but I can imagine a scenario in which Obama loses and we still get two liberal Justices replaced by two liberal Justices.  Even if, by some miracle, McCain had beaten Obama, the Democrats would still have controlled the Senate. It is possible, but not I think plausible, that McCain would invested the huge amount of time and political energy it would have taken to get a Democrat controlled Senate to confirm a Supreme Court pick in the Roberts-Alito mold.  Who imagines McCain sending conservative Supreme Court pick after conservative Supreme Court pick even as the Senate votes them down or filibusters them until at last, worn out, the Senate okays a conservative pick?  I can imagine Huckabee showing such fortitude, but social conservatism (if not exactly constitutionalism) was more at the center of Huckabee's politics.  McCain has a pro-life voting record and he was a solid vote for conservative court nominees, but if McCain had to pick between expending his political energies on a court fight or something to do with foreign policy, does anybody doubt where he would invest his energy?  My best guess is that any Supreme Court picks that got confirmed under a combination of McCain presidency and Democrat controlled Senate would be Anthony Kennedys and the very best, and more likely David Souters.  Which was why, when it became clear that Obama and McCain were going to be the nominees, and that the Democrats would pick up seats in the Senate, I figured it would be a tough four years (at least) when it came to Supreme court vacancies. 
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Discussions - 2 Comments

Another possibility is that McCain would have offered up a Senator such as Hatch. No Republican can nominate a Justice who would offend the moral conservatives--one reason Bush nominated Harriet Miers, a move that turned out offending conservatives generally. Bush was saved by her self-immolation.

Ken, I don't think that a Hatch would have avoided at least a successful filibuster (if not a straight up and down defeat, depending on the Democrat whip count) if he had been picked to replace a Souter or Stevens (and therefore confirm the last fatal vote to undermine Roe)under the conditions of 55+ Democrats in the Senate. Senatorial deference would not, in itself, survive the party's featly to Roe. That is not to say that I think it is impossible to imagine a Democrat-controlled Senate confirming a nominee who ended up not only voting against Roe , but being the vote that overturned Roe. I just think that it would be a long grinding process, almost certainly involving several rejected nominees and the President having clearly won the public relations fight over getting his picks nominated. I'm pretty sure that McCain would have neither interest in, nor the political skills for, that kind of fight

As for a pick that would offend conservatives. Safely in the presidency, I suspect that McCain would have found many opportunities to get mavericky in ways that infuriated conservatives, let him rebuild his reputation as a "good Republican", get him great press in the MSM (as an open-minded unifier), and enabled him to avoid a damaging fight while allowing him to move on to the foreign policy issues he really cares about.

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