The Republican Candidates' Views on Judicial Selection: How Would a President McCain, Huckabee, or Paul Influence the Supreme Court and the Rest of the Federal Judiciary?

By CARL TOBIAS
Monday, Feb. 11, 2008

On Tuesday, February 12, voters in the District of Columbia, Maryland, and Virginia will go to the polls and cast ballots in the "Potomac" presidential primaries. One essential constitutional responsibility that presidents discharge is to "nominate, and by and with the Advice and Consent of the Senate," appoint federal judges, including most importantly Supreme Court Justices. Moreover, judicial selection has taken on peculiar salience for the next chief executive because the 44th president will probably name multiple Justices to the sharply-divided Supreme Court and three judges to the influential U.S. Court of Appeals for the Fourth Circuit, which has vacancies in both Maryland and Virginia. Therefore, it is crucial that voters understand the positions that the Republican candidates have assumed on appointments.

Judicial selection has figured prominently in the Republican Party's strategy for federal elections since 2000, mainly because the GOP leadership thinks that the issue appeals to its base. Overall the three current Republican presidential candidates differ minimally in their views on this process (and the same could be said of Mitt Romney, before he dropped out of the race). All three have recited the GOP litany regarding appointments that is demanded of every serious contender. Yet it's worth taking a look at the nuances of their respective positions.

Senator McCain's Views

Because Senator John McCain is now the clear frontrunner, his judicial selection record warrants especially close evaluation. I discussed McCain's record in a prior column, and will elaborate that discussion here.

As noted above, McCain, like the other Republican candidates, has invoked the right-wing Republican Party mantras about the process. For instance, he has stated that "one of the greatest threats to our liberty [and] our freedoms is willful judges who legislate from the bench" and has praised President George W. Bush for naming justices "who strictly interpret the Constitution." McCain has also promised to select judges who interpret the Constitution and laws and do not "impose their own view as to the best policy choices" or become "liberal judicial activists."

McCain has correspondingly taken the mandatory pledge to nominate Supreme Court Justices who closely resemble Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas. For instance, the candidate observed that he had "strongly supported John Roberts and Samuel Alito for the Supreme Court," who had demonstrated fidelity to the Constitution, and "that is why I would seek men and women like them as judicial appointees."

Numerous conservatives have attacked McCain for helping fashion the "Gang of 14," the collection of Senators whose 2005 effort stopped the Republican majority from setting off the "nuclear option" that would otherwise have prevented filibusters of judicial nominees. McCain's opponents fail to remember, however, that it was this work that prevented the Senate from filibustering Justice Alito, who is one of their darlings. Moreover, the same endeavor fostered the prompt confirmation of several conservative judges, such as Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit and Judge Priscilla Owen of the U.S. Court of Appeals for the Fifth Circuit.

McCain as well has been attacked for working with Democrats. However, his practice of reaching across the aisle may benefit conservatives - and in the near term. If Democrats win the presidency and increase their Senate majority this fall, conservatives will thank McCain and the Gang for their having retained for Republicans (as well as Democrats) the ability to filibuster nominees whom they find overly liberal.

Former Governor Huckabee's Views

Candidate Mike Huckabee has remarked: "The role of a judge is to interpret the law, not to legislate from the bench; and as president, I will only appoint men and women who share this view." He correspondingly pledged to "appoint justices and judges who not only share my judicial philosophy (e.g., Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito), but who also have established themselves within the conservative legal community as faithful adherents of originalism and textualism."

This remark suggests that Huckabee may well be more conservative than McCain when it comes to appointments, as Huckabee endorses Scalia and Thomas and seems to embrace the originalist philosophy that relies on the Framers' intent to decide even very contemporary issues.

Congressman Ron Paul's Views

Candidate Ron Paul remarked that he "would only appoint federal judges who hold a strict constructionist view of the Constitution, and respected every provision of the Constitution, including the second, ninth, and 10th amendments." The references to the Ninth and Tenth Amendments are especially interesting, as these amendments state that the federal constitution shall not be construed to "deny or disparage" other rights retained by the people, or by the states, which are "reserved."

Moreover, Paul promised to "work with Congress to pass legislation limiting federal jurisdiction over issues that the founders intended to be resolved by the states, local government and the people."

Overall, Paul's views suggest he will have a very strong conception of the states' role in our federal system, and will probably appoint like-minded federal judges, who have a firm conception of the limits upon their own, and other branches', powers.

The Upshot: Three Similar Perspectives from the GOP Candidates, with Some Possible Nuances

When District of Columbia, Maryland and Virginia Republican residents cast their ballots in Tuesday's Potomac primaries, they must seriously consider the candidates' views on the important responsibility of federal judicial selection. The perspectives which they have articulated are remarkably similar - but do differ in their nuances.

The appointments record compiled by Senator McCain, the clear favorite, and his comparative stress on Justices Roberts and Alito suggest that McCain may depart from the other candidates' views and value a range of conservative perspectives. Indeed, McCain might rectify or temper the accusations and countercharges and divisive partisanship that have attended selection through cooperation with Democrats, who will probably enhance their Senate majority this autumn.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.