Candidates, Judges, and Social Conservatism

There is a lot of discussion surrounding the two GOP Presidential front runners (if such a thing can exist 21 months away from an election) about their conservative bona fides. For John McCain, this relates mostly to his assault on political speech, opposition to tax cuts, and his amnesty-esque stance on immigration. For Giuliani, it has to do with his checkered love life, support for civil unions, gun control stance, and pro-abortion views.

But do these things matter? What do conservatives really want - and what do they really need - from a President?

Ultimately, it comes down to judges. A president's personal views on abortion are less important to abortion foes than his willingness to appoint judges and justices who understand Roe v. Wade is a terrible abuse of judicial power and needs to be overturned. The executive's inclination toward gay marriage or even civil unions is far less relevant than his understanding that the Constitution doesn't require those outcomes via the Fourteenth Amendment. The fear is that the social liberal will, in order to protect his or her policy preferences, are willing to appoint judges who are willing to flex and stretch the Constitution to fit those notions, whether the Constitution actually applies or not.

I've always been worried that a President McCain, when interviewing judges, will sit them down and say, "Here's the thing - campaign finance reform is my baby. You aren't going to consider any part of McCain-Feingold (or anything subsequent I do to make it even tougher) unconstitutional, are you?" While it certainly can be fairly said that there are too many lawyers in government, one of the downsides about not having a legal education is not fully understanding how judges fit into the conservative scheme. And that leads to nominating Republicans (like Souter, Kennedy, O'Connor, and Harriet Miers) instead of conservatives - not exactly a formula for consistent or conservative jurisprudence.

What's more, I haven't heard anything from McCain about judges. What kind of justices will he appoint? What does he look for in his potential appointees? What is his understanding of the role of judges in the Constitutional scheme?

Giuliani, on the other hand, is an attorney. And he's correctly downplaying his more liberal social views and talking about what kind of judges he'll nominate. As he recently said in South Carolina,

On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible.

President Bush has the great model because I think as the President he did appointed some really good ones and both of them are former colleagues of mine - Chief Justice Roberts and Justice Alito. Justice Scalia is a former colleague of mine. Somebody that... I think Chief Justice Roberts is a great chief justice and he's young and he can have a long career and that's probably the reason the President and Vice President chose him. I think those are the kinds of justices I would appoint -– Scalia, Alito and Roberts. If you can find anybody as good as that, you are very, very fortunate.

I think voters - especially Republican primary voters - are smart enough to understand the balance and tension between personal social views, the role of the judiciary in social issues, and which is more important. (Indeed, I believe the failure to make this a campaign issue last year likely cost the GOP control of the Senate.) The question will be who broaches the subject the correct way - or at all.