How John McCain saved President Bush’s judicial nominees

Sen. John McCain of Arizona is well on his way to becoming the nominee of the Republican Party in this presidential election and will certainly face a tough and historic challenge from Sen. Barack Obama (D-Ill.). There’s no question that of all the presidential candidates in the field on both sides, clearly McCain presents unmatched credentials.

Often times in presidential races the core constituencies of both sides distort their candidates’ record. Having had a front-row seat during President’s Bush’s Supreme Court nomination battles, I know first hand that the conservative base of the Republican Party is clearly distorting and misrepresenting the facts of McCain’s role during this process, and my intention is to set this record straight.

There has long been criticism of McCain from the conservative right that he betrayed the conservative judicial nominees of Bush by derailing the plan of then-Senate Majority Leader Bill Frist (R-Tenn.) and others to deploy the so-called “nuclear option” in 2005 to achieve a Senate Rules change to terminate the judicial filibusters by the Democrats. These filibusters were unprecedented and had the effect of requiring the president to achieve 60 votes for confirmation in order to invoke cloture to stop debate (i.e., the filibuster). As a result of this tactic almost a dozen judges were blocked from an up-or-down vote and Bush was facing serious constraints in his choice for potential Supreme Court openings.

What McCain did was to negotiate an agreement with 13 other senators from both parties (the so-called “Gang of 14”) to preclude a vote on the Senate rules change in return for a commitment to resort to the filibuster device only in “extraordinary circumstances,” defined to include issues of ability, character or ethics, but NOT judicial philosophy.

Since the alleged conservative judicial philosophy of Bush’s nominees was the reason for the filibusters, the agreement had the direct effect of terminating the filibusters and paving the way for the nomination and confirmation of Chief Justice John Roberts and Justice Samuel Alito. The agreement also freed up the confirmation of the dozen or so appellate nominees who had been frozen for months and, in some cases, years.

At the time of the agreement, and before the confirmations were finalized, some conservatives attacked the agreement and McCain for initiating it on the grounds that it was not “permanent” — that is, the agreement might be easier to turn back than a rule change. This was theoretically true at the time, but there was nothing impermanent about the confirmations, as the judges involved will serve for life. Of course, the issue of the rule change later became moot after the Democrats regained control of the Senate and thus had no need for use of the filibuster since they had the ability to defeat any nomination by majority vote. Even where the Democrats have not been able to muster their own majority to defeat a nominee such as Attorney General Michael Mukasey (and thus could have benefited from a filibuster), however, there was no whisper of a filibuster despite the fact that he only garnered 53 votes.

The criticism remains and reverberates from some conservative pundits as factual, however, even though the reasons have long since disappeared if they ever had any validity. It is time to give McCain credit for his contribution to what is Bush’s most important and lasting domestic legacy — his lifetime appointments to the federal courts, including his two to the Supreme Court. Making this political arrangement was not easy, as emotions were running very high at the time. Indeed, one should also recognize McCain’s skill on its own, because it is very strong evidence of his ability to work across the aisle. This ability will be in very great demand, whoever wins the White House.

McCain deserves some credit for freeing these justices and judges — not continued criticism for allegedly frustrating one of President Bush’s most important and enduring legacies. There are definitely issues where conservatives can criticize McCain in a substantive and legitimate way, but they have no legs to stand on in criticizing his role in Bush’s judicial nominees to the courts.

Williams is the CEO and founder of the Graham Williams Group and The Right Side Production Inc., an international public relations and media firm based in Washington. A political commentator in many venues, he is a regular contributor to The Hill’s Pundits Blog.