When it comes to selecting Judges to the Supreme Court, most, if not all, conservatives agree on the model of Roberts and Scalia. These types of constructionist justices (along with Alito and Thomas) are the dream team for conservatives. In all recent Republican discussions, these men are seen as archetypes.
Last year a New York Times article scored the political leanings of the current 9 justices on the Supreme Court, base on votes cast in the 2006-2007 term. The thrust of the article is the courts move to the right (which excites conservatives), but it is interesting to look deeper into their scoring of the justices:
Most Liberal to Most Conservative
Stevens – Ginsburg – Souter – Breyer –KENNEDY –Alito – Roberts – Scalia – Thomas
What emerges are two foursomes and one swing vote – Kennedy. This is not new knowledge to observers of the court. Kennedy replaced O’Conner as the swing vote and with that came a more conservative court. Of the ten major 5-4 cases this year he voted with conservatives 80% of the time.
Considering that Stevens is the oldest at almost 87 (with Scalia and Kennedy next at 71), it is safe to assume that only Stevens has high probability of being replaced in the next five years. Who would the four current presidential candidates nominate to replace him? (Huckabee had zero chance of winning the nomination and even as VP he will have no influence, and therefore will not be a factor)
Obama is by far the most liberal of the four and would nominate someone very similar to Stevens. If this occurs with the current congress, he will pass with little resistance since he is replace kind for kind. Although conservatives in general will disapprove, there is no major change to the courts balance.
Hillary is more pragmatic, but would also nominate someone very liberal, probably in the model of Souter or Ginsburg. Again, with the current congress there will be little resistance.
Republican candidates will face a battle with the Democrats that we have not seen in decades. With Stevens being a part of the liberal bed-rock of the court, they will not allow another conservative on the court. They will see this as Armageddon – as will conservatives. So the question becomes who do conservatives want fighting this fight? Between Romney and McCain, the difference is quite stark.
McCain, as a southwest senator, has a high conservative rating with ACL at 82.3% which should remove most doubts - until you look closer at his history. Admittedly he has voted consistently on life. But interestingly, this week Rick Santorum outed McCain as being “uncomfortable” with social conservative issues:
"On social conservative issues, you point to me one time John McCain ever took the floor of the United States Senate to talk about a social conservative issue. It never happened. I mean, this is a guy who says he believes in these things, but I can tell you, inside the room, when we were in these meetings, there was nobody who fought harder not to have these votes before the United States Senate on some of the most important social conservative issues, whether it’s marriage or abortion or the like. He always fought against us to even bring them up, because he was uncomfortable voting for them.”
As we know, when he votes, he votes for life – but knowing his obvious distain for social conservatism, would he fight for conservative/constructionist judges? Remember McCain indicated he might draw the line on a Samuel Alito because 'he wore his conservatism on his sleeve.' How about his judicial compromise with the Gang of 14? When conservatives were about to savor a judicial victory, McCain compromised and stole the victory for the grasps of conservatives. Do we want someone who is uncomfortable with and will compromise on conservative Judges?
On the other hand we have Mitt Romney. This is truely a case of words vs. action. He is a former moderate Governor from liberal Massachusetts who has been pointing to his record as Governor as to how he will appoint judges. He has praised the appointments of Justices Roberts and Alito. Legislatively, his has always sided with life and same-sex marriage – two key issues with conservatives. In most other states this wouldn’t be a big deal, but in Massachusetts it is always a fight against a liberal legislature, and he fought and fought hard for conservative values. He has taken a strong stand on these issues, which shows a consistent trend towards conservatism and the things that matter most to conservatives.
As conservatives prepare to vote in upcoming primaries, judicial nominations need to be in the forefront of their minds. Justice Stevens may leave the court and for better or worse 3 of the 4 candidates will ensure the court stays in its current balance. Only Mitt Romney has shown he will fight a liberal tidal-wave in defending life and traditional marriage.