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January 23, 2008

McCain & the Gang of 14

I had been willing to give McCain a partial pass on the Gang of 14 compromise, figuring it actually helped a few conservative judges through. So in net effect, it helped the cause.

Andrew McCarthy (Pretty In Pink, St Elmo's Fire) argues persuasively that's not the case at all.

Forcing our political representatives to tell us where they stand is a fundamental democratic principle. Even losing a “nuclear option” vote would have been valuable for conservatives: It would have identified which Senators believed — like Sen. McCain obviously believes — that preserving senatorial privilege took precedence over their constitutional duty to consent to, or withhold consent from, judicial nominees.

Besides preserving their privilege (which allows a single senator, for absolutely no reason, to prevent a president from fulfilling his constitutional obligation to appoint officers of the United States, without whom the government cannot function), McCain and his confederates were most determined to avoid accountability. That was the essence of the Gang of 14 deal. The senators pretended, in a bluster of high-minded twaddle, to resolve the controversy without disturbing the chamber’s procedures. It was nonsense.

At the time, the president had made ten nominations that Democrats (and some Republicans) blocked. Three of them had been so abused by the senatorial intransigence that they finally withdrew their names from consideration. Of the remaining seven, the Gang of 14 agreed there would be a vote on only three. It then went on to preserve the filibuster, purporting that it could only be invoked in “extraordinary circumstances.”

That this was an utterly empty commitment was palpable from the agreement itself. The Whites assert:

While the agreement's "extraordinary circumstances" clause was vague and perhaps even unenforceable, the Gang never allowed it to be used successfully to allow a filibuster—most likely because the Gang of 14 also did not foreclose ultimate resort to the nuclear option in such situations.

This is preposterous. The Gang of 14 deal itself continued four of the filibusters, two of them conclusively. As the Whites concede, the deal “cited two nominees (William Haynes and Henry Saad) whose fates would not be decided by the agreement, effectively killing those nominations.”

Now follow this: four of the nominees (Haynes, Saad and two others) (a) had been filibustered before the deal and (b) were not given an up-or-down vote by the deal. Ergo, the deal kept those filibusters going. It did so, moreover, without anything approaching extraordinary circumstances — even as Sen. McCain and his accomplices claimed there would be no further filibustering absent such circumstances. And, as the Whites further confusingly acknowledge, the nominations of Haynes and Saad were “effectively kill[ed]”; that is, though the Whites say the Gang of 14 agreed those nominees’ “fates would not be decided by the agreement,” their fates were precisely decided by the agreement. Further, to the extent there might have been some wiggle room around the agreement, Haynes is to this day being blocked by McCain. So, though the deal he spearheaded may represent “straight talk” to Sen. McCain, it’s unlikely the nominees — or many other people — would see it that way.

I've been emailing McCarthy to find out if he or Levin has written an article about McCain's actual commitment to supporting -- or appointing, if elected President -- conservative judges. I don't think they've addressed this point specifically.

But I'll just note that we know when McCain is emotionally stirred by an issue. He gets angry. He called, for example, Senator Cornyn a "chickenshit" and screamed "Fuck you!" at him when he tried to alter McCain's comprehensive piece of shit to make it more palatable to sovereignty-minded conservatives.

Can anyone recall McCain putting his political chips on the line for a single conservative judge? Can anyone remember him displaying his well-known temper when a very fine man, Miguel Estrada, was slandered and filibustered by the Democrats for no other reason than the fact that he was eminently qualified, young, and Hispanic, and therefore a likely Supreme Court pick one day?

Because I don't.

A lot of people give Giuliani grief over his commitment to nominate conservative justices. I don't, myself. Because I know law and order guys hate liberal judges just as much as pro-life folks. Whether he's pro-choice or not, he doesn't want judges on the bench who invent new rights.

But I don't see much examination over McCain's commitment to judicial conservatism. And yet we know that in the filibuster fight, he sided with Democrats to, essentially, preserve and ratify their victories in blocking good, qualified conservative judges. And we also know that while he may expend political chits on a few issues of importance to him -- the war and pork, mostly -- we never seem to see him using that MSM-supplied halo in the service of helping conservative jurists get to the court.

Many of us seem to be assuming McCain would fight for a conservative judge. Why? What evidence is there of this? All the evidence we have points in the exact opposite direction.

If you like Justices Kennedy and Souter and Breyer, you're going to love President McCain. Because I see many such "consensus judges" with "solid bipartisan backing" being nominated by President McCain.

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posted by Ace at 05:09 PM

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