Does McCain Have Litmus Test for Judges?

To his credit, John McCain recognizes that “one of our greatest problems in America today is justices that legislate from the bench,” and he has emphasized the importance of appointing “justices such as Justice Roberts and Justice Alito who strictly interpret the Constitution.” However, McCain has drawn fire from many – but not all – conservatives for his part in the May 2005 “Gang of 14” Senate deal on judges.

Conservatives are even more critical of his leading role in enacting the McCain-Feingold campaign finance law. So it was just a matter of time before someone argued that a McCain-Feingold litmus test would make McCain’s promise about judges an empty one. Witness this week’s blog post by Romney supporter and former Federal Election Commission chairman Brad Smith, who speculates on the reason McCain has few endorsements from conservative and libertarian law professors:

"McCain is likely to make support for McCain-Feingold – an issue he has said is ‘of transcendent importance’ to him – a litmus test for judges. It is very hard, however, to find judicial candidates who think McCain-Feingold is constitutional yet who are also are anti-Roe v. Wade and generally respectful of the Constitution."

GWU Law School Professor Orin Kerr, a former Fred Thompson supporter, sharply disagrees. He’s

"puzzled by Brad Smith's suggestion that conservative law professors are not likely to support John McCain because belief in the constitutionality of McCain Feingold is somehow inconsistent with "general respectfulness" for the Constitution . . . I thought that judicial restraint was one of the traditional core principles of legal conservatism . . . [A] truly consistent conservative judge [would] be inclined to uphold McCain Feingold."

A commenter also questions Smith’s theory, saying “the most obvious conclusions to draw” from McCain’s dearth of law professor support is that “candidates with law degrees have more connections among law professors.” Giuliani, Thompson, and Romney have law degrees and lots of law professor endorsements. McCain and Huckabee have neither.

What do we think? Kerr is correct that judicial restraint requires deference to the legislature and thus a presumption that McCain-Feingold is constitutional. But McCain-Feingold strains that presumption. Thus, there is some tension between John McCain’s belief in the constitutionality of McCain-Feingold and his promise to appoint strict constructionist judges. At the same time, it is reassuring that McCain has promised to “impose no litmus test on any judge,” because it’s “not fair to ask a prospective judge for a specific position on a specific issue.” Moreover, this pledge was made in a context where it can be tempting to say otherwise, namely a discussion of abortion during the current campaign.

Note: The Committee for Justice has not endorsed any of the presidential candidates.