John McCain: Good for the Supreme Court?

By Jeffrey Robbins

I often find that one last objection of many conservatives who continue to vote Republican for President is often on the grounds of the potential harm that a Democrat would bring to pass on the Supreme Court. For those readers who have not yet read the first writings that appeared here regarding this possible myth that Republicans have been good for the Court, you may want to review two earlier posts,
here:
http://wiconstitutionalist.blogspot.com/2008/01/are-republicans-conservative-part-ii.html
and here:
http://wiconstitutionalist.blogspot.com/2008/01/are-republicans-conservative-part-iii.html

Since the time is quickly eroding until we take to the polls in November to decide who among the many candidates will receive our rightful vote for President (Baldwin, Barr, Obama, McCain, and Nader for example), it may be an important time to review the harm John McCain (and many of his fellow Repubicans) has possibly wrought on the Supreme Court.

In 1993, Ruth Bader Ginsburg was confirmed by a vote of 96 to 3. The only votes against her came from three conservative Republicans: Helms (R-NC), Nickles (R-NC) and Smith (R-NH). Senator Donald W. Riegle Jr., a Michigan Democrat, did not appear for the vote.

In 1994, Stephen Breyer was confirmed by a 87-9 vote. Burns (R-MT), Coats (R-IN), Coverdell (R-GA), Helms (R-NC), Lott (R-MS), Lugar (R-IN), Murkowski (R-AK), Nickles (R-OK), Smith (R-NH) were the votes against his confirmation. There were four non-voters, two from each party.

John McCain assumed his Senate seat on January 3, 1987.

As we can see, John McCain votes Left when a Democrat is picking the US Supreme Court nominees, as he did with Clinton picks Ginsberg and Breyer. His other votes have been for Thomas, Roberts, Alito, Kennedy, Souter, and Bork. So based on his actual votes (not his rhetoric) we have zero idea what principles guide him in voting for Justices as these Justices range from what most would consider the most liberal to moderate to conservative.

What happened when the Democrats filibustered one Bush nominee to the federal court of appeals after another in 2005? McCain's reaction? Annouce on Chris Matthews' Hardball program that he would vote with Teddy Kennedy, Chuck Schumer and Dick Durbin and vote to let the, then, minority Democrats retain the judicial filibuster.

McCain tries to explain his tendency for voting with Ted Kennedy and the Left by saying, "If the Democrats win the White House, we need to retain our option to filibuster liberal nominees."

McCain was just wanting to preserve the judicial filibuster so that he could filibuster a Left Wing judicial nominee if a Democrat became president in the future, right?

If that's the case, why did McCain vote for Ruth Ginsberg and Stephen Breyer?

One also cannot offer the following excuse others have offered: "That was when we judged nominees on their qualifications only, not ideology." Votes for Ginsberg and Breyer, occuring in 1993 and 1994 happened after the Democrats sunk the Robert Bork nomination in 1987 and nearly sunk the Clarence Thomas nomination four years later, in 1991.

In fact, don't consider this necessarily an indictment of simply McCain. It could be an indictment of the vast majority of Republican Senators. It strikes me as odd that the two generally accepted most conservative nominees in Bork and Thomas had the closest confirmation votes, indicating the Democrats voted on ideology. Yet, the Republican Senators who claim rhetorically that they want strict constitutionalists fall short somehow when we look at the confirmation votes for seemingly very liberal Justices as the votes overwhelmingly and inexplicably pour in from Republicans. Perhaps, just perhaps, a review of the following will turn your head on this topic.

Breyer and Ginsberg, our two examples above, coasted through 87-9 and 96-3, respectively. Conversely, Thomas was confirmed with a vote of 52-48 and Bork's nomination failed 42-58.

The same pattern occurs with Attorney General nominees: 42 votes against John Ashcroft, 36 against Alberto Gonzales, and zero against Janet Reno. Why? (When you go back and read the two posts mentioned in the first paragraph of this post you will note that Ashcroft and Gonzales were not necessarily conservative or freedom-loving once in office.)

What if we look at the votes of the disappointing moderates to liberals nominated by Republicans? Souter was confirmed 90-9. O'Conner was confirmed 99-0. Stevens 98-0. If Republicans do not put up a wimper when liberal nominees such as Ginsberg are nominated. If Republicans themselves nominate and vote for a number of moderates (cloaked as "conservatives" for the nomination hearings - only to find out later...)...is it any wonder we have a myth brewing that Republican presidents have been great for the Court and freedom?

Perhaps when McCain said he was "disappointed" with the US Supreme Court (Alito, Scalia, Roberts, Kennedy and Thomas were in the majority) decision that struck down McCain's anti-1st Amendment McCain-Feingold legislation he is giving us a much better clue than his rhetoric as to his thoughts on the Court and why he votes for the likes of Ginsburg. That is the very same Ruth Bader Ginsberg who was the former ACLU General Counsel on record endorsing reducing the age of sexual consent to age 12 as well as Co-ed prisons.

Do you not believe McCain is proud of his Supreme Court votes? He is certainly using them to 'woo' Hillary Clinton Democrats. See this link: http://www.politico.com/blogs/bensmith/0608/McCain_mingles_with_Clinton_supporters.html

Of course as noted in other articles posted here, a vote for McCain is a vote for a liberal. Here below are just some of the problems a conservative should have in casting a vote for John McCain. There are other, better candidates. I would point to former Republican Congressman Bob Barr of the Libertarian Party and Chuck Baldwin of the Constitution Party. Why continue voting for the evil of two lessers and betraying your priciples?

1) Tax cuts. In 2001 and 2003, McCain was one of 2 and then 3 Republicans, in the US Senate to vote with the Democrats against the Bush tax cuts. McCain is now I understand preaching that he did so because the tax cuts did not come along with appropriate spending cuts. That is simply disingenous. Why? Senator McCain not only voted against the Bush tax cuts, he joined leading liberal senators in offering and voting for amendments designed to undermine them. All in all, Senator McCain voted on the pro-tax side of 14 such amendments in 2001 and 2003. These included such odious measures as:

An amendment sponsored by Senator John D. Rockefeller (D-WV) to prohibit a reduction in the top tax rate until Congress enacted legislation to provide a prescription drug benefit.
An amendment sponsored by Senator Russ Feingold (D-WI) against full repeal of the Death Tax. This vote is in keeping with Senator McCain's 2002 vote against repealing the Death Tax.
An amendment sponsored by Tom Daschle (D-SD) and co-sponsored by Senator McCain to limit tax reduction in the top tax bracket to one percentage point.

Well, okay, maybe his rhetoric (as it sometimes is) was conservative at least:
"I cannot in good conscience support a tax cut in which so many of the benefits go to the most fortunate among us at the expense of middle-class Americans who need tax relief." quoting John McCain, Washington Times, 06/09/01

How different was McCain's excuse for voting against the 2001 Bush tax cuts from some (other) liberals?

Here's Ted Kennedy on the 2001 Bush tax cuts:

"Now, they are proposing more of the same, more tax breaks benefiting only the wealthiest among us." Sen. Ted Kennedy, Press release, 06/08/06

Democratic Representative Maxine Waters (CA): "I voted against the Republican tax cut plan, which is an irresponsible tax cut that will further undermine the nation's struggling economy at the expense of middle-class American families." The Los Angeles Sentinel, 05/29/03

(2) McCain-Kennedy immigration bill. They don't call John McCain "McAmnesty" for nothing.

(3) McCain-Kennedy-Edwards "Patients' Bill of Rights". There's a bill that would have enriched the Trial Lawyers and severely damaged the private health insurance market.