04/17/2008 05:12 am ET | Updated May 25, 2011

A McCain Court: Likely Less Than Maverick

Unlike Sens. Clinton and Obama, John McCain is not a lawyer. However, his years in lawmaking as an Arizona Congressman and Senator surpass those of his two prospective opponents combined.

Over his two decades in Congress, McCain has been called a maverick, one whose views do not always take the size and shape of a usual Republican. During his tenure in the Senate he has established the reputation as a center-right Republican. He is clearly conservative on homeland security and international affairs as well as social issues like abortion and gay marriage.

Yet at the same time, McCain has supported comprehensive immigration reform and environmental protection to reduce global climate change, sponsored public campaign financing with Democratic Sen. Russell Feingold, condemned the use of torture tactics against suspected terrorists, and opposed President Bush's early tax cut measures--all putting him at odds with the national GOP party line as well as most Republican-appointed judges.

Despite these positions, during the primary campaign, McCain pledged to appoint strict constructionist justices, like Scalia and Thomas, who interpret the Constitution more literally than as a living document. These same justices would likely tear apart the very legislation on campaign finance reform that he championed for several years in the Senate. This is just one of many issues where McCain and the Scalia-prototype would split, according to their respective public voting record and legal decisions.

In other words, many conservative Republicans still maintain doubts about McCain's promise to nominate reliably conservative Justices if elected. They fear his more centrist bent might compel him to tap middle-of-the-road nominees who share his liberal views on campaign finance reform, immigration, and the environment.

In response to conservative skepticism, McCain cites his enthusiastic support for the Bush nominations of both Roberts and Alito. In a statement following the Chief Justice's nomination, McCain embraced Roberts's support for a narrow, textual interpretation of the Constitution.

He responded similarly to Alito's nomination: "I will vote to confirm Judge Alito, who demonstrated in his testimony before the Senate Judiciary Committee that he will be an intelligent, fair, and open-minded justice who respects the judiciary's important but limited role of interpreting the law."

In a column in The Wall Street Journal, Professor McGinnis and his colleague Steven Calabresi argue that McCain is "the best option to preserve the ongoing restoration of Constitutional government." Advocates of the originalist jurisprudential approach, which argues for a textual interpretation of the founders' intent, they write, "He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to Constitutionalism as Mitt Romney, a candidate for whom we also have great respect."

"Even if you think of McCain as a moderate Republican, the sorts of people he would like to appoint are people who are well-positioned in the world of Republican judicial politics," McGinnis added in an interview.

Juxtaposing his potential appointments against the Democrats', Cass Sunstein immediately remarked--contrasting the Arizona Senator with Obama specifically--"McCain is not a Constitutional scholar ... [and] not someone who has a specialized interest in the internal organization of the document. I feel less confident that he'd appoint someone of distinction."

Sunstein does not believe McCain's centrist tendencies will lead him to pick more moderate judges or lawyers to serve on the bench. "Expect [candidates] who are political in their votes, if not in their opinions. Someone who looks more like Roberts and Alito. Someone who would shift the Court very much to the right," he said.

He also suggests that the stakes are higher for the future of liberal jurisprudence this election because replacing the next likely retiree, a liberal Justice Stevens, with an Alito or Thomas "would present a very dramatic shift on the Court." Sunstein added, "I think there's been a quiet conservative revolution on the Court since 1980. It is true that conservative jurisprudence would be magnified by a McCain victory--under Obama or Clinton, status quo would be continued." And by status quo, Sunstein means continued 5-to-4 nailbiters at the High Court.

McGinnis dismisses the idea that his views on immigration or the environment are relevant to his choices because the Court will respect any compromises McCain strikes with Congress on those issues, many of which he believes the judiciary will not closely follow. Plus, he notes that middle-ground conservative justices are not as prevalent as they once were. "The strand of jurisprudential thought that produced Sen. Warren Rudman and Justice David Souter is no longer vibrant in the Republican Party."

Asked if he could name any current lawyers or justices who fit this profile, Professor Dorf named Judge John T. Noonan of the 9th Circuit Appellate Court in California. He also mentioned--albeit outside of the judiciary--Mike Huckabee as another example of a social conservative whose views on fiscal and tax are more centrist than purely conservative. But Dorf concedes, "Most [potential candidates'] judicial philosophies come in packages rather than a la carte." In other words, it would be difficult for a President McCain (or Obama and Clinton, for that matter) to find a potential nominee who varies from conservative to liberal on issue to issue.

In summary, both Clinton and Obama would likely make more center-left appointments to the bench like those of Breyer and Ginsburg. Obama might be more risky in his selection process, and their nominees might disagree on the finer nuances of liberal jurisprudence. Despite his centrist views on a range of public policy issues, McCain will likely still select candidates in the mold of more strict constructionists like Roberts and Alito.

In the last installment of "The High Court" series, Scoop08 will post interviewes conducted with several additional Supreme Court observers for their assessment of the 2008 election's potential impact.

Read more from Alexander Heffner at Scoop08.