Judges, "Conservatives", and the "Gang of 14"

John McCain, it comes as no surprise, is still having trouble with conservatives. Given his own conservative stances--which always take a hard-right turn close to election time--it is a little surprising that the right wing of his party is so concerned. Ann Coulter, Rush Limbaugh, and other media clowns aside, there are serious reasons for the senator to worry that he will not be able to corral the base of his party for the November elections.

We might reduce the entire question to one of judges. For the self-styled, capital "C" conservatives in the Republican Party, the issue of what judges has become paramount. McCain has earned conservatives' distrust primarily because of his membership in the "Gang of 14," a bipartisan Senate clique that sought compromise in the growing crisis over George W. Bush's judicial appointments. Stonewalling appointments--nothing new, by the way, and a tactic of the Republicans during Clinton's administration--led Republicans to threaten to change the Senate rules. Current rules require a vote of 60 Senators to agree to stop debate before voting to confirm or deny a presidential appointment. Such rules guarantee that the minority party is not shut out of the process of giving "advise and consent" during the nomination process. Dubbed the "nuclear option," the rule change would have forced an up or down vote on any nominee by the president. It would have had the effect of greatly speeding up the judicial nominating process, provided that the same party (and presumably the same factions within that party) controlled the Senate and the Presidency. The Gang of 14 made the political bargain. Agree not to nominate anyone too radical, said the Democrats, and we will make sure you have the votes to get the nominee to the floor. McCain and other Republicans said fine. The deal was struck, the nuclear option was taken off the table, and two of the most conservative men ever to sit on the Supreme Court were successfully nominated and approved.

It was hardly a Faustian bargain, but conservatives have regarded McCain with suspicion ever since. Whether this is justified, even from a radical conservative viewpoint (as opposed to a principled or pragmatic one) is up for debate. Whether it proves detrimental to McCain's bid for the presidency remains to be seen, but it seems fairly clear that the "base" of the republican party feels betrayed, left out in the cold, and most likely won't venture out to the polls this year, at least not in the numbers that they did when Karl Rove cajoled them to come out and vote for W.

Buried beneath this story of coalition building with in the two-party system is an extraordinary assumption: that judges truly are the most important officers in our republic. They have, of course, always been important. But is it so important that McCain has to send up signal flairs (Ted Olsen is his new best friend, e.g.) and drop a whole constituency come election time? Maybe so.

Historically, judges have wielded tremendous power, but not over the kinds of subjects that conservatives are now concerned with. First and foremost in the minds of today's religious conservatives are questions about the separation of church and state (establishment clause) and abortion. But these are not issues resolvable in the courts, regardless of the will of the justices or, for that matter, the original meaning of the Constitution.

The real question, it seems, is precisely what difference judges can make in everyday issues.
Throughout most of our history, judges have been conservative bulwarks against radical political change. This was true even when they were actively ruling in favor of corporate and industrial America's expansion and declaring trade unions illegal in the late-nineteenth century. It will doubtless remain true into the next century.

From this standpoint, McCain's position in the "Gang of 14" should not be a liability. It was an old fashioned conservative compromise, one that preserved the existing rules, took account of
minority views, and resisted the kind of radical shift in politics that might destabilize politics permanently.

Hardly a thing, in other words, that would upset true conservatives.