Last week, John Fund took some heat over his reporting, based on multiple sources, that John McCain said he might not be inclined to nominate another Samuel Alito to the Supreme Court, because he wore his conservatism on his sleeve. That created a stir and a puzzled rebuttal from the McCain camp, which noted that he had supported the actual Alito nomination. They didn’t deny that McCain made the remark, but noted that Fund couldn’t give a specific time and place for it and doubted it had been said at all.
Today, Robert Novak corroborates Fund and places the remark and its timing:
I found what McCain could not remember: a private, informal chat with conservative Republican lawyers shortly after he announced his candidacy in April 2007. I talked to two lawyers who were present whom I have known for years and who have never misled me. One is neutral in the presidential race, and the other recently endorsed Mitt Romney. Both said they were not Fund’s source, and neither knew I was talking to the other. They gave me nearly identical accounts, as follows:
“Wouldn’t it be great if you get a chance to name somebody like Roberts and Alito?” one lawyer commented. McCain replied, “Well, certainly Roberts.” Jaws were described as dropping. My sources cannot remember exactly what McCain said next, but their recollection is that he described Alito as too conservative.
This actually makes it slightly worse. The Fund quote implied that McCain wouldn’t appoint an Alito because he thought Alito was too overtly conservative. Novak’s report shows that it wasn’t Alito’s overtness, but his conservatism that McCain found unattractive. That won’t help convince conservatives to trust McCain on judicial nominations.
People should be cautious before jumping to too many conclusions, though. First, McCain did support both Roberts and Alito in their confirmations, and by all accounts enthusiastically. That arguably could have come from the deference Presidents should have in selecting their own judicial appointments, too, rather than enthusiasm for the choice itself. Second, McCain’s preference for a Roberts still speaks volumes about why he’d be a much better choice in a general election over a Hillary Clinton or Barack Obama. I find McCain’s response a little more reassuring overall.
Nevertheless, as George Bush found out with the Harriet Miers nomination, the conservative base sees the judicial nomination power as one of the most important roles for a President. Alito got his nomination because of conservative ire over his pick of Miers. It demonstrated that nothing will provoke the base as much as a fumble on judicial picks; this looks like a fumble, but not an unrecoverable one. McCain could address the issue by giving a few names of who he might have in mind for Supreme Court nominations, or at least naming a couple of advisers he’ll use to make those decisions. His new endorser, Rudy Giuliani, took that approach by naming an entire panel of experts to his campaign for just that purpose.