Jack Balkin points us to this article in the WSJ defending John McCain on the question of judicial appointments. Part of the op-ed consists of the usual vacuous buzzwords like "judicial restraint" (although they at least avoid the usual procedure of decrying "judicial activism" and then proceeding directly to a claim that judges should strike down affirmative action programs or railing against Kelo.) But -- as with many conservative defenses of McCain -- their overall point that McCain will nominate reliably reactionary justices is certainly correct. This point is particularly important:
Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.Of all the attacks on McCain from the right, criticism for being part of the "Gang of 14" is the most bizarre to me, given that the Democrats gained absolutely nothing from the compromise. The Democrats agreed to let several unacceptable judges on to the federal bench, and in return retained a theoretical ability to filibuster they didn't use against either of Bush's two very reactionary Supreme Court appointments. Moreover, if you're willing to issue a farcical ruling to break a filibuster it's hard to believe you wouldn't go back on the Gang of 14 deal. And, of course, starting in 2009 maintaining the filibuster will directly help Republicans.What's inexplicable about the Gang of 14 is why the Democrats agreed to it. Why a conservative would hold it against McCain is beyond me.
--Scott Lemieux
