On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.
We'll lay aside the irony of them endorsing a man because of the number of Supreme Court justices who will be over 70, when their endorsee will be 72 when he takes the oath of office.
Let's consider what factors might play into a McCain choice for a Supreme Court Justice.
The Gang of 14. McCain was a main instigator of creating the gang of 14 senators who agreed to vote for or against judges en masse. This basically took the "advice and consent" role of the Senate in nominating judges and justices and gave to power to decide which nominees would get an up or down vote in the senate to 14 Senators. This doesn't necessarily reflect on how what kind of nominees he will nominate. But it does show how he feels about constitutional processes.
McCain-Feingold Campaign Refinance act. McCain points to this as one of his big successes in the senate, to try to minimize the influence of money in politics. Any reasonable assessment of campaigns since the law was enacted show at least as much money in the mix, if not more. However, this has come up for scrutiny to the Supreme Court. Some (including me) consider the bill an assault on the first amendments. McCain will likely support justices that will not overturn McCain-Feingold.
Federal Election Commision v. Wisconsin Right to Life, Inc. This is one such case challenging McCain-Feingold that came before the Supreme Court. McCain filed an "amicus curiae" brief in support of the FEC and, therefore, against Wisconsin Right to Life. That means he agrees with Breyer, Souter, Ginsberg and Stevens, who sided with the FEC on this case. It is reasonable to assume, then, that these are the types of justices he would look for.
John Fund, also of the Wall Street Journal, wrote:
Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because "he wore his conservatism on his sleeve."
McCain says he doesn't remember saying that phrase and are happy with both. He did not stand against either nomination in the Senate.
And I'm not sure where that leaves us. Do we take him at his word and what he promises he will do? Or do we judge him by his actions so far?