Different Republican, Same Right-Wing Court

WASHINGTON — There is no mystery to the missing lightning rods. John McCain neglects to volunteer the names of Supreme Court Justices Antonin Scalia and Clarence Thomas as model jurists for an obvious reason.

The acid-tongued Scalia and the silent-but-no-less-extreme Thomas tend to scare the sort of moderate, swing voters upon whose good will the presumptive Republican nominee’s reputation as a maverick — and chances for the White House — rests. So the straight talker hit the delete button on Scalia and Thomas when he gave his speech on the federal judiciary at Wake Forest University on Tuesday. He inserted instead the names of Chief Justice John G. Roberts and Justice Samuel Alito as his judicial icons.

This has all the significance of substituting Pepsi for Coke.

President Bush appointed Roberts and Alito to placate the partisans of the right, who fixate on the courts as the branch of government through which they can further their agenda for decades to come, regardless of those unpredictable elections that determine control of Congress and the White House. Roberts and Alito have been stalwart partners of Scalia and Thomas, the two justices whom candidate Bush held up as models in 2000. Together, they’ve pushed the high court further rightward. The four have voted together, for example, to make it all but impossible for a woman to bring a successful pay discrimination suit, and for school districts to voluntarily promote racial diversity in their schools.

The history of Alito’s ascension to the Supreme Court reveals the meaning of the epithet “Scalito.” After the right wing pummeled Bush for having nominated White House counsel Harriet Miers to replace Sandra Day O’Connor — the first woman justice who incensed conservatives with her center-right moderation — the Miers nomination was withdrawn and Alito was put forward. The huzzahs from the extreme right echoed from the pulpits to the television studios to the House and Senate.

Relatively few voters base their ballot on potential Supreme Court picks. With a deep economic crisis at home and grueling wars abroad, the public’s anxiety over judges is almost certain to be minimal in November.

Not so for the right wing. McCain must stoke the embers of their anger, and do so now when media coverage remains focused on the Democratic nomination contest. It was not by happenstance that he served up the conservative red meat on the day of the Indiana and North Carolina primaries.

The stew McCain offered was the usual concoction of inflammatory allegation and pure fiction that characterize the right’s war against the federal bench. McCain said, for example, that “judges show little regard” for the elected branches of government. “They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges.”

The trouble with this argument is that judges nominated by Presidents Ronald Reagan, George H.W. Bush and George W. Bush now dominate the federal judiciary. Fully 59 percent of federal appeals court judges were named by Republicans, according to an analysis by People for the American Way, a liberal-leaning group that monitors the judiciary. So were seven of the nine justices of the Supreme Court.

Even the cases of outrage that McCain recited from the conservative canon are suspect. He claimed as an offensive “power play” a 2005 ruling in which the high court said a city may take private property for public use, even if it is to be developed by a private company. But the five-member majority in that decision included three Republican appointees. McCain also harrumphed about a 2004 case in which an appellate court had ruled in favor of an atheist father who objected to his third-grader having to listen to the phrase “under God” in the Pledge of Allegiance. The candidate failed to mention that the judgment was quickly overturned when the Supreme Court reversed the decision because it said the father had no standing to bring the case.

There is a temptation to treat a presidential candidate’s bows to his party’s core supporters as inconsequential bits of political housekeeping. But McCain’s efforts are especially burdened by his claim to offer a kind of Republicanism different from that of the hard right, while simultaneously reassuring these partisans that he is one of them. Having now pledged to give them the sort of judges they want, a President McCain can scarcely be expected to give us the sort of judges the public deserves.

Marie Cocco’s e-mail address is mariecocco(at)washpost.com.

© 2008, Washington Post Writers Group