Thursday, January 31, 2008

McCain and Alito

Today, Robert Novak rambles about whether John McCain is a "conservative", based upon rumors that McCain would have picked John Roberts for the Supreme Court but not Samuel Alito.
That was the background for conservative John Fund's Wall Street Journal online column the day before Florida voted. Fund wrote that McCain "has told conservatives he would be happy to appoint the likes of Chief Justice Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito because 'he wore his conservatism on his sleeve.' " In a conference call with bloggers that day, McCain said, "I don't recall a conversation where I would have said that." He was "astonished" by the Alito quote, he said, and he repeatedly says at town meetings, "We're going to have justices like Roberts and Alito."
Personally, I would not pick either of them.

That's not about ideology, as such. It's about personality. I am not particularly enamored with people, no matter how bright and accomplished, who appear to possess authoritarian personalities. Nor am I particularly enamored with people who seem to be locked into a particular ideology, where "All roads lead to Rome." It's a bit like seeing Scalia concoct a brand spanking new version of "sovereign immunity", which I'm sure he would insist is 100% consistent with the intentions of the founding fathers (even if he was the first to notice). I'm not thrilled with eagerness with which the Roberts Court approaches voting rights - not with an eye to protecting voters, but what seems to be an eye for preventing challenges to unconstitutional laws until after an election is over. Gerrymandering? Reproductive freedom? Habeas Corpus? What surprises do you expect?

When you take any particular question going before the court, nine times out of ten you can guess how the various justices are going to vote before you read the decision. If you are handed a decision and get the vote count, probably 19 times out of 20 you can accurately guess which Justices joined the majority opinion, and which dissented. And that's if you're not a Supreme Court scholar, but just a passive observer of the court. The factions of the political right that are infatuated with Roberts and Alito like to skewer the court's "swing voters" - those who don't consistently fall under their preferred ideology. It isn't that those factions know something about the law or Constitution - their only concern is the advancement of a specific political agenda.

Maybe I would feel differently if I were President, and had the opportunity to appoint a justice so rigid in his beliefs that I was confident that he would provide a consistent vote for my political agenda - continuing perhaps for decades after I left office. But I'm not the President, I get to be more idealistic, and I want justices who actually wrestle with the issues rather than consistently falling back on ideology. And I would just as soon avoid having any authoritarian personalities on the Court.

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