Did McCain say he wouldn't nominate another Sam Alito? Update: McCain responds

John Fund reports the quote today, in a long piece about how John McCain can patch things up with conservatives.

Then there is the issue of judicial nominations, a top priority with conservatives. Nothing would improve Mr. McCain’s standing with conservatives more than a forthright restatement of his previously stated view that “one of our greatest problems in America today is justices that legislate from the bench.” Mr. McCain bruised his standing with conservatives on the issue when in 2005 he became a key player in the so-called gang of 14, which derailed an effort to end Democratic filibusters of Bush judicial nominees. More recently, Mr. McCain has told conservatives he would be happy to appoint the likes of Chief Justice John Roberts to the Supreme Court. But he indicated he might draw the line on a Samuel Alito, because “he wore his conservatism on his sleeve.”

After NRO picked up that quote, McCain campaign staffer Steve Schmidt emailed the following to Rich Lowry:

“It’s absolutely false. Sen. McCain was instrumental is helping confirm Justice Alito. We relied on him a great deal during the confirmation process to reassure the American people that Alito was the kind of justice America needed. John McCain was a warrior to get Alito on the bench.”

Rich rightly notes that this response doesn’t directly deal with the Fund quote, which says that McCain wouldn’t appoint an Alito. That’s a world away from fighting for Alito’s nomination once President Bush had already made it.

Two questions arise from all of this. First, is the quote accurate? The Schmidt non-response suggests that it is; the response changes the subject to more favorable ground to McCain without addressing whether McCain actually said what Fund quotes. Second, is Alito really too conservative by McCain’s lights to be a SCOTUS nominee under a McCain presidency? McCain needs to answer this immediately. Different types of conservatives vote based on many things, but judges have to rank in the top five for nearly all of us. While most conservatives have soured on the Bush presidency either because of spending or immigration or this or that policy, most of us still consider Bush’s SCOTUS nominees (minus Miers) to be reason enough to consider his presidency, on balance, worth support and certainly better than the alternatives that were available in 2000 and 2004. If McCain won’t appoint nominees similar to Bush’s, no speech at CPAC will help him repair the rift with conservatives, and conservatives don’t have much reason to support him if he’s the GOP nominee.

If McCain truly does consider Alito to be too conservative, then on judges even Rudy Giuliani is to McCain’s right and would make a less problematic GOP nominee than McCain.

Update: Byron York spent some time with McCain today and asked about this issue.

“Let me just look you in the eye,” McCain told me. “I’ve said a thousand times on this campaign trail, I’ve said as often as I can, that I want to find clones of Alito and Roberts. I worked as hard as anybody to get them confirmed. I look you in the eye and tell you I’ve said a thousand times that I wanted Alito and Roberts. I have told anybody who will listen. I flat-out tell you I will have people as close to Roberts and Alito [as possible], and I am proud of my record of working to get them confirmed, and people who worked to get them confirmed will tell you how hard I worked.”

“I don’t get it,” McCain continued. “I have a clear record of that. All I can tell you is my record is clear: I’ve supported these guys. I went to the floor of the Senate and spoke in favor of them. It’s in the record, saying, ‘You’ve got to confirm these people.'”

I asked whether McCain had ever drawn any distinction between Roberts and Alito. “No, no, of course not,” McCain said.

Read the rest. It’s about as strong a response as one could hope for. McCain’s denial is strong enough that the question ought to shift to Fund to justify or retract his quote.