Sunday, September 7, 2008

The US Supreme Court. A reason to support McCain for President?

Many conservatives who are reluctantly supporting John McCain for president are doing so because they are worried about the ideological direction of the US Supreme Court under a President Obama. This is a very legitimate consideration. I will now explain why this consideration has not persauded me to support John McCain.

Will there be a US Supreme Court vacancy?

The following the are the current Justices of the US Supreme Court along with their respective age.

John Stevens - 88, Ruth Ginsberg - 75, Antonin Scalia - 72, Anthony Kennedy - 72, Stephen Breyer - 70, David Souter - 68, Clarence Thomas - 60, Samuel Alito - 58, John Roberts - age 53.

It is my expectation that if Obama is elected, no conservative justices (Scalia, Kennedy, Thomas, Alito and Roberts) will retire. But it is very possible that two of the liberal justices, Stevens and Ginsberg will retire. Conversely, if McCain is elected, it is my expection that no liberal justice will retire.

The reason is that most US Supreme Court Justices care about what direction the court will take once they leave. It explains why Sandra Day O'Conner did not retire during the Clinton administration but waited until George W. Bush was elected president. It also explains why Harry Blackmun and Byron White did not retire during the Reagan and Bush adminstrations (1981-1993) but retired when Clinton was president. Blackmun retired in 1993 and White retired in 1994.

Who controls the US Senate? The Democrats.

Currently the Democrats have a 51 to 49 seat majority in the US Senate. Therefore, they have a majority on the Senate Judiciary Committee, which handles nominations to the US Supreme Court and the US Court of Appeals.

Most political experts believe that the Democrats will gain anywhere from 3 to 7 US Senate seats this November. This would result in a Democrat Senate majority ranging from 54 - 46 to 58 - 42. In addition, not all Republican US Senators are strong conservatives. So not all of their votes can be counted on in the event of a confirmation battle.

Another important consideration is the fact that the Democrats have already tried out their filibuster strategy and it worked very successfully to prevent Bush's judicial nominations from being confirmed. McCain is on record supporting, in principle, the Democrat party's right to filibuster judicial nominees. This means that the Democrats need only 41 of their members, not 51, to defeat a judicial nominee.

It is highly unlikely that a President McCain will be able to convince a Democrat Senate to confirm a constitutionalist nominee.

McCain's views on issues before the US Supreme Court

McCain has been an advocate of ignoring the 1st Amendment of the US Constitution and of campaign finance reform, which severely restricts the ability of American citizens to participate in politics within 60 days of an election. The conservative members of the US Supreme Court believe that much of the McCain-Feingold campaign finance legislation is unconstitutional.

McCain is an opponent of waterboarding and supported a law that would prohibit any treatment of terror suspects that would be considered "humiliating." The conservative members of the US Supreme Court do not see this conduct by the federal government as unconstitutional.

Also, consider a portion of my previous post where I mention that John McCain assisted the Democrats in the Democrats' effort to retain the right to filibuster Bush's judicial nominees. This leaves open the very real possibility that McCain does not really desire a US Supreme Court that is more conservative. It is very possible that he is only using this tried and true campaign line of "judges that interpret the law and do not invent law" as a means of getting votes from conservatives in a tight presidential contest with Barack Obama.

Looking ahead to 2012

If McCain wins the 2008 election, it is reasonable to believe that the Democrats will win the 2012 presidential election. This is because the Republican party has not held the White House for 4 consecutive terms since the 1896-1908 time period. The inevitable desire on the part of the American people for change is likely to result in a Democrat White House four years from now.

A very likely scenario is that there are no vacancies on the US Supreme Court during a four year McCain presidency. Conservative Justices would not retire out of concern that a replacement could not get a fair hearing from the Democrat Senate and, also, out of concern that McCain would appoint a moderate or liberal to replace him. Liberal Justices would not retire out of concern that McCain would appoint a conservative or moderate to replace him or her.

The a likely result is that there would be several US Supreme Court vacancies in the president term beginning in January 2013, when the Democrats would hold both the White House and the US Senate. Not only could the Democrats fill judicial seats occupied by older Liberal Justices with younger Liberal Justices. They might be able to fill judicial seats occupied by Conservative Justices with Liberal Justices. This is because of the advanced age of Antonin Scalia and Anthony Kennedy, both currently 72 years old.


The US Supreme Court is a profoundly important institution as is the 1st Amendment of the US Constitution. Entrusting someone like John McCain, someone who has demonstrated in his Senate career a complete disregard for the intentions of the 1st Amendment, to maintain or expand on the conservatism of the US Surpeme Court is a huge gamble that conservatives will likely lose.