It’s about the court, it would seem.
Sen. John McCain is doing well with many voters. However, some conservatives insist they wouldn’t vote for him should he get the Republican presidential nomination.
Their reason is straightforward. They don’t trust him to put forth conservative judicial nominees.
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But McCain did find some support today from two law professors with impeccable conservative credentials.
In backing McCain, Professors Steven G. Calabresi and John O. McGinnis of the Northwestern University School of Law defended his senatorial track record of backing conservative judicial nominees.
But they rested their argument on a simpler point.
“By all accounts, Mr. McCain is more electable than Mr. Romney,” they wrote.
In other words, as nice as it might be to conservatives to contemplate Mitt Romney’s court selections, he may not be there to make them.
And the authors stress that the next president could have a lot of court picks, as six of the nine justices will be 70 or older by next January. (They don’t mention that McCain turns 72 this August.)
The endorsement from Calabresi and McGinnis, who both had supported Rudy Giuliani until he ended his candidacy, had to be good news to McCain.
Calebresi is a co-founder and chairman of the influential Federalist Society, a group for conservative and libertarian lawyers.
He also was a law clerk for Associate Supreme Court Justice Antonin Scalia. And he worked in the administrations of Ronald Reagan and George H.W. Bush.
McGinnis clerked for Kenneth Starr, the former Whitewater special counsel, when Starr was a judge on the U.S. Court of Appeals for the District of Columbia.
He also was a deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice during the Regan and first Bush administrations.
There are other conservative lawyers, however, who are withholding their support for McCain.
They don’t like his support of campaign finance legislation, saying it hinders free speech.
They are angered by his earlier participation in what was known as the “Gang of 14.” This group of Republican and Democratic senators resisted an attempt to end filibusters during the judicial nomination process.
Conservatives also say they are concerned that McCain may have said privately that he would support nominees like Chief Justice John Roberts but that he might have reservations about nominees like Justice Samuel Alito.
McCain denied this, saying: “I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed.”
Wendy Long, the legal counsel to the Judicial Confirmation Network, a group that advocates for conservative appointments to the federal court, is among a large group of prominent conservative lawyers that has backed Romney.
“It is not overstatement to say that the Supreme Court and the future of the Constitution are at stake in the next election,” Long has said. “Republicans must win, yes. But the right Republican must win.”
Long, who clerked for Justice Clarence Thomas of the Supreme Court, is a senior legal adviser to the Romney campaign. She is also vice chair of Romney’s National Faith and Values Steering Committee.
Other prominent conservative lawyers supporting Romney include Viet D. Dinh and Bradford A. Berenson, who helped developed the USA Patriot Act, and Jay Alan Sekulow, chief counsel of the American Center for Law and Justice.
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