Political Hay

McCain’s Justices

Who he might choose, assuming a very Democratic Senate.

By 5.28.08

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John McCain effectively has the Republican nomination for president, and social conservatives are getting a bit wary. Now accustomed to being listened to by the White House, they're not keen on giving up their newly acquired power. After the Bush Administration, they finally have the Supreme Court in a place where they feel comfortable; but, they know that the judges most likely to retire next are the ones they disagree with the most -- and if they can just get a President who is sympathetic to them, they can get a nominee on the Court for life that will agree with what they so fervently believe in.

Senator McCain, on the other hand, knows that social conservatives make up a large portion of the vote. Although his image is that of an independent maverick, he knows he needs the conservative base to show up and vote for him to even have a chance of spending a single night in the White House. But he is listening. He has recently given speeches about judicial nominations to quell conservative fears that he's just a bit too much of a maverick.

So who should he pick? He's got a lot to consider. For one, he probably wants to pick someone young so that a life term really means something. But, if he is lucky enough to be elected President, he is likely to face a heavily Democratic Senate. In other words, thanks to the U.S. Constitution and a little thing we call democracy, McCain has to worry about what his old colleagues in the Senate will think of his nominees.

SINCE SANDRA DAY O'CONNOR left the court, there has been somewhat of a void. Because she was replaced by a white male, the Senate and electorate are likely to be more amenable to a woman, a minority, or both. Fortunately, President McCain will have many qualified candidates to pick from even from a pool limited to women or minorities.

Priscilla Owen. 53 years old (young enough), and a female currently on the Fifth Circuit Court of Appeals, Owen was widely rumored to be a top choice of President Bush, who appointed her to the Fifth Circuit. She has a good story, she grew up working in rice fields and herding cattle, but came to have the highest score on the Texas State Bar and made partner at a law firm by age 30. She is rated "well-qualified" by the America Bar Association. Her downfall? Nomination problems. She had a rough trail to the Fifth Circuit, when Democrats first held her nomination, not allowing a vote on it, and later filibustered to keep the Senate from approving her. It wasn't until the GOP picked up some Senate seats in the 2004 election that she was confirmed. Part of this, however, is because Democratic leaders knew she was a possible candidate for the Supreme Court, and wanted to keep her out of the appellate court to prevent her from gaining any credibility.

Janice Rogers Brown. A 59-year-old African American female on the D.C. Circuit of Appeals, she is the daughter of a sharecropper, who worked her way through law school as a single mother. She is not widely considered a solid conservative, which makes her more likely to be a choice of John McCain. She upheld a ban on semi-automatic weapons, but is anti-abortion enough to satisfy the base. Her libertarian reputation didn't keep her from being filibustered in the Senate, but she was finally confirmed to the D.C. Circuit by a vote of 56-43. Not exactly a overwhelming endorsement, but a thirteen-vote margin is fairly large in today's Senate.

Karen Williams. A 57-year-old Caucasian female who is the chief judge in the conservative Fourth Circuit Court of Appeals, where she has served for sixteen years. She fits within the McCain message (separating himself from the President) because she was not appointed by President Bush (though she was appointed by the first President Bush). She has upheld a Virginia state law that requires public school children to be led in the pledge -- popular with conservatives. She has no heavy abortion decision though -- nothing for Democrats to hate her for, but nothing for conservatives to really around her for, either.

Consuelo Callahan. A 58-year-old Hispanic female who sits on the liberal Ninth Circuit Court of Appeals. As an Hispanic, she presents a good opportunity for McCain in bringing this growing population to the Republican party. She is not all that conservative, but in the face of a Democratic Senate, she would be a good compromise. She is well liked by conservatives, and is known for being tough on criminals. Nonetheless, Democrats rave about her, even Senator Leahy, and she enjoyed a unanimous vote in the Senate to confirm her to the Ninth Circuit.

OF COURSE IT DOESN'T necessarily have to be a female, and if it's not, Edward Prado might be the guy. He, like Collahan, is strongly supported by Democrats -- Senators Leahy and Schumer included. He a 61 year-old Hispanic male who sits on the Fifth Circuit of Appeals. He was nominated to the Fifth Circuit by President Bush, but was originally nominated to a Federal District Court by President Reagan. And John McCain will be quick to tell you (over and over) that he was a "foot soldier in the Reagan revolution." He is seen as a moderate, and would be a solid choice in the face of compromise. Age is less of a factor for a compromise candidate, as neither side cares as much how long the nominee is on the Court.

Michael Luttig has become almost a cliche when talking about future Supreme Courts; although a Caucasian Male, he is only 53 years old, and was the youngest judge on a Federal Appeals Court when he was appointed to the Fourth Circuit Court of Appeals in 1991. He is highly respected in conservative circles, even though he pulled the rare move of leaving the court to be General Counsel to the Boeing Corporation. He got into somewhat of a skirmish with the Bush Administration over transferring a case about an enemy combatant when the Administration feared reversal in the Supreme Court. He refused to transfer the case, but the Supreme Court stepped in and acquiesced. This distance from the Bush Administration will help John McCain in securing a seat on the High Court for Luttig.

If Senator McCain resides in the White House the next time a seat on the Supreme Court opens up, he will have a lot of choices in the Circuit Courts alone. A large portion of his decision will already be made simply by who happens to occupy the Senate chambers a few miles down the road, which makes it hard to predict. But John McCain is not known for being predictable. His pick for the high court may not be on this list -- or anybody's.

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About the Author

Russ Ferguson is a lawyer and writer in Charlotte, North Carolina.