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"Cure_Ewan" <karrde_smuggler_@hotmail.com> wrote in message
news:fobkg4$qmf$1@news.albasani.net...
FWIW, from the WSJ:

Wall Street Journal: McCain And The Supreme Court

By Steven G. Calabresi and John O. McGinnis

The conservative movement has made enormous gains over the past three
decades in restoring constitutional government. The Roberts Supreme Court
shows every sign of building on these gains.

Yet the gulf between Democratic and Republican approaches to constitutional
law and the role of the federal courts is greater than at any time since the
New Deal. With a Democratic Senate, Democratic presidents would be able to
confirm adherents of the theory of the "Living Constitution" -- in essence
empowering judges to update the Constitution to advance their own conception
of a better world. This would threaten the jurisprudential gains of the past
three decades, and provide new impetus to judicial activism of a kind not
seen since the 1960s.

We believe that the nomination of John McCain is the best option to preserve
the ongoing restoration of constitutional government. He is by far the most
electable Republican candidate remaining in the race, and based on his
record is as likely to appoint judges committed to constitutionalism as Mitt
Romney, a candidate for whom we also have great respect.

We make no apology for suggesting that electability must be a prime
consideration. The expected value of any presidential candidate for the
future of the American judiciary must be discounted by the probability that
the candidate will not prevail in the election. For other kinds of issues,
it may be argued that it is better to lose with the perfect candidate than
to win with an imperfect one. The party lives to fight another day and can
reverse the bad policies of an intervening presidency.

The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court
justices will be over 70. Most of them could be replaced by the next
president, particularly if he or she is re-elected. Given the prospect of
accelerating gains in modern medical technology, some of the new justices
may serve for half a century. Even if a more perfect candidate were somehow
elected in 2012, he would not be able to undo the damage, especially to the
Supreme Court.

Accordingly, for judicial conservatives electability must be a paramount
consideration. By all accounts, Mr. McCain is more electable than Mr.
Romney. He runs ahead or even with Hillary Clinton and Barack Obama in the
national polls, and actually leads the Democratic candidates in key swing
states like Wisconsin. Mr. Romney trails well behind both Democratic
candidates by double digits. The fundamental dynamic of this race points in
Mr. McCain's way as well. He appeals to independents, while Mr. Romney's
support is largely confined to Republicans.

With many more Republican senators up for re-election than Democrats, the
nomination of Mr. Romney could easily lead to a Goldwater-like debacle, in
which the GOP loses not only the White House but also its ability in
practice to filibuster in the Senate. Thus, even if we believed that Mr.
Romney's judicial appointments were likely to be better than Mr. McCain's --
and we are not persuaded of that -- we would find ourselves hard-pressed to
support his candidacy, given that he is so much less likely to make any
appointments at all.

In fact, there is no reason to believe that Mr. McCain will not make
excellent appointments to the court. On judicial nominations, he has voted
soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His
pro-life record also provides a surety that he will not appoint judicial
activists.

We recognize that there are two plausible sources of disquiet. Mr. McCain is
perhaps the foremost champion of campaign-finance regulation, regulation
that is hard to square with the First Amendment. Still, a President McCain
would inevitably have a broader focus. Securing the party's base of judicial
conservatives is a necessary formula for governance, as President Bush
himself showed when he swiftly dropped the ill-conceived nomination of
Harriet Miers.

Perhaps more important, because of the success of constitutionalist
jurisprudence, a McCain administration would be enveloped by conservative
thinking in this area. The strand of jurisprudential thought that produced
Sen. Warren Rudman and Justice David Souter is no longer vibrant in the
Republican Party.

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 Owens, Janice Rogers Brown and Bill Pryor, three
of President George W. Bush's best judicial appointees to the lower federal
courts.

Conservative complaints about Mr. McCain's role as a member of the Gang of
14 seem to encapsulate all that is wrong in general with conservative
carping over his candidacy. It makes the perfect the enemy of the very good
results that have been achieved, thanks in no small part to Mr. McCain, and
to the very likely prospect of further good results that might come from his
election as president.

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