As his evolving reactions to the Guantanamo case may indicate, legal issues are not at the center of McCain's policy interests. But they are a top priority for conservative activists, which makes me all the more nervous about what a McCain presidency would mean for the court.
Marcus, the Post's deputy national editor from 1999 through 2002 (bio), noted that “the oldest justices are also the most liberal,” so she worried “a President McCain could shift the court significantly to the right” while, she lamented, “a President Obama would be lucky, even with a Democratic Senate, to nudge the court even a bit in a liberal direction.”
Earlier in her June 18 column, Marcus, who is now an editorial writer for the paper, quoted McCain on the Guantanamo ruling: “'One of the worst decisions in the history of this country,' he thundered last Friday.” She then exposed her liberal position on abortion as she asked: “Worse than Roe v. Wade, to take an example on which McCain and I differ but that illustrates the overheated nature of his reaction?”
(Screen shot is from when Marcus was past of the roundtable on ABC's This Week on May 11.)
An excerpt from her column, “The Court McCain Wants,” which appeared in the June 18 Washington Post:
Conservatives, seizing on the Supreme Court's ruling last week on Guantanamo detainees, want to turn the court into election fodder....
McCain was initially mild, saying only that the decision "obviously concerns me." By the next day, though, he was as over the top as Justice Antonin Scalia, who warned that the court's action "will almost certainly cause more Americans to be killed." Legal reasoning -- or ad copy for the Republican National Committee?
In any event, McCain got the point. "One of the worst decisions in the history of this country," he thundered last Friday.
Worse than Roe v. Wade, to take an example on which McCain and I differ but that illustrates the overheated nature of his reaction?...
McCain lamented that the court was giving rights to "enemy combatants ...ardently seeking to destroy the United States of America and all that we stand for and believe in." Strikes me that a big part of what we believe in is the rule of law and the notion that people can't be held indefinitely without a fair hearing.
As his evolving reactions to the Guantanamo case may indicate, legal issues are not at the center of McCain's policy interests. But they are a top priority for conservative activists, which makes me all the more nervous about what a McCain presidency would mean for the court. Yes, a Democratic Senate could temper the kind of nominee McCain would select, but a conservative legal movement whose rallying cry is "No More Souters" will be hard to satisfy with an unknown commodity. Remember Harriet Miers?
The next president is almost certain to have one appointment, and quite possibly two or more. In addition, the oldest justices are also the most liberal: John Paul Stevens is 88; Ruth Bader Ginsburg is 75.
As a result, a President McCain could shift the court significantly to the right, while a President Obama would be lucky, even with a Democratic Senate, to nudge the court even a bit in a liberal direction. More likely, he would merely be able to maintain the shaky, conservative-leaning status quo.
And it is shaky indeed -- not just when it comes to abortion rights, the usual focus of Supreme Court debate in election years. Certainly, the addition of one or two conservative justices could mean, if not Roe's explicit demise, then a dramatic curtailing of the right to choose. Yet the court is at a tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action....
