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January 28, 2008

Conservatism On The Sleeve And On The Hoof

John Fund takes a look at the problematic relationship between John McCain and conservatives in his party, and focuses on one of the hot-button issues: judicial nominations. He doesn't give activists much hope on this front, quoting McCain as supportive of John Roberts' nomination but rejecting Samuel Alito as a model for future nominations. Why? Alito didn't hide his conservative nature well enough:

Nothing would improve Mr. McCain's standing with conservatives more than a forthright restatement of his previously stated view that "one of our greatest problems in America today is justices that legislate from the bench." Mr. McCain bruised his standing with conservatives on the issue when in 2005 he became a key player in the so-called gang of 14, which derailed an effort to end Democratic filibusters of Bush judicial nominees. More recently, 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."

Therein lies the problem that many conservatives have with John McCain. It is the nagging feeling that after all of his years of chummily bonding with liberal reporters and garnering favorable media coverage from them that the Arizona senator is embarrassed to be seen as too much of a conservative.

Last week's editorial endorsement of Mr. McCain by the New York Times, which delighted in recounting every one of Mr. McCain's disagreements with conservatives, didn't help. "John has to begin a new phase of his campaign," says one prominent Republican in Congress who is backing Mr. McCain. "He has to decide if he wants to be a leader of the conservative movement that he says he joined after Ronald Reagan inspired him to enter politics in 1982. If he does that, he can be accepted. If he doesn't, he will have to settle for a shotgun marriage with conservatives."

We should know the answer soon enough. Shortly after I suggested that McCain make an appearance at the CPAC convention next week, the McCain campaign reportedly came to the same decision. They have not formally accepted an invitation to the annual convention, the largest aggregate of conservative activists every year, but supposedly they have rented some exhibit space and people believe McCain may make an appearance.

McCain will find himself in a tough spot on judges. The Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold) will face some hard challenges in the next few years. A more constructionist court may take issue with the restrictions the BCRA places on political speech in pursuit of clean campaigning. The BCRA envisions a changing definition of the First Amendment that simply doesn't exist with strict constructionists such as Alito, Antonin Scalia, or Clarence Thomas. It seems unlikely that McCain will appoint jurists who would undo the BCRA at their first opportunity.

Perhaps McCain can explain this better to the conservatives who see Supreme Court nominations as the Holy Grail of presidential politics. He will find no better place than at CPAC, which I plan to attend as a credentialed blogger. But if he objects to jurists who honestly and forthrightly believe in limited judicial power and leaving legislation to legislators, he will find that a number of the activists at CPAC not only wear their conservatism on their sleeves but also put conservatism on the hoof. They take it seriously, and by at least meeting with them, McCain can send the signal that he takes them seriously as well.

UPDATE: Byron York asked McCain about this today, and reports:

I asked about the "wore his conservatism on his sleeve" line. "I'm proud of people who wear their conservatism on their sleeves, because they have to have a clear record of strict adherence to the Constitution," McCain told me. "Remember, in all my remarks, I've said, look, we're not going to take somebody's word for it. You have to have a clear record of adherence to the Constitution, a strict interpretation of the Constitution. I have said that time after time after time."

"And maybe as an aside, why would I say anything derogatory about somebody like that? What would be the point, after working so hard to get not only those two confirmed, but the Gang of 14 ­ which I know is controversial ­ but our record of getting those judges confirmed that the president nominated, I'm still proud of."

I still don't see an explanation of why he wouldn't nominate an Alito based on that comment, but this is at least a better explanation than what he originally said.

UPDATE II: John Fund says that the operative word in the quote should be "might", indicating hesitation rather than opposition.


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