Will Boumediene and Heller bring conservatives closer to McCain?

According to Ben Adler, the conservative base has begun to warm to John McCain on the issue of judicial appointments.  The Politico reporter credits this to McCain’s selection of advisers on the judiciary, including conservative stalwarts like Fred Thompson and Ted Olson, as well as McCain’s May 6th speech outlining his philosophy on the role of the judiciary.  However, two 5-4 Supreme Court decisions this week may provide even more incentive for reluctant conservatives to pull the lever for McCain:

Conservatives may not be enamored of John McCain, but on a subject that is near and dear to their hearts—legal philosophy and judicial appointments—they are finding a lot to like about the Arizona senator.

Between his campaign trail rhetoric and a stable of legal advisors who are well-regarded in conservative circles, McCain is winning over converts who at one time harbored deep suspicions about his commitment to appointing reliably conservative judges.
It’s a surprising turn of events for a candidate who was once booed at the Conservative Political Action Conference and especially for one who played a key role in brokering the “Gang of 14” compromise in 2005, a deal that some conservatives contend undermined the Republicans’ opportunity to ban filibusters against judicial nominees.

This newfound respect is rooted in the widely-held belief that, if elected, McCain will appoint high court justices like George W. Bush appointee Chief Justice John Roberts, rather than David Souter, the George H.W. Bush appointee viewed by conservatives as a deep disappointment due to his liberal to moderate record.

If momentum had turned that way before this past week, the Boumediene and Heller decisions have put judicial nominations back on the forefront of the campaign.  In the former, five justices claimed to find a right to habeas corpus for foreign unlawful combatants held abroad during a time of war despite never having a single precedent of such a detainee having ever been granted access to the American civil court system.  The latter case pleased conservatives, but the 5-4 split showed how close the court came to effectively neutering the 2nd Amendment.

In the next term, the President will have to replace at least one Justice, and possibly as many as three.  That makes this a critical election for conservatives, especially those concerned with the corrosive effects of judicial activism.  Barack Obama has pledged to nominate jurists interested in “social justice” rather than a strict reading of the Constitution and limiting the scope of the judiciary.  As Rudy Giuliani noted then, that makes the comparison rather stark:

KELLY: It’s funny you should mention that, Mr. Mayor, because Barack Obama in a statement responding to John McCain’s point today said and I quote, “Barack Obama has always believed that our court should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”

Why the laughter?

GIULIANI: Well, the laughter because that is not what a judge in the American legal system is supposed to do. That is not a really responsible definition of a judge. The judge is supposed to interpret the law. And the law is written by other people. It’s written by members of the Congress. It’s written by framers of the Constitution. It’s written by the people when they amend the Constitution.

And then a judge has to have a certain, I would say, dedication to trying to interpret what other people mean and sometimes cannot put their social views into action. This is a very fair issue. John McCain would appoint judges who are more, I would call, originalists in terms of trying to define the meaning that other people had.

I think Senator Obama has made the case very strongly that John McCain has made that, he will appoint social activist judges, judges who tend to try to solve social problems rather than trying to figure out what does the law mean?

George Will wrote yesterday that Heller took the issue of gun rights off the table for this election, but it didn’t do that at all.  The court will have to extend its thinking on Heller over the next several years, deciding what constitutes legitimate restrictions based on compelling state interests and what constitutes overreach.  How those cases get decided will rely on how the composition of the court changes over that period.  As Boumediene demonstrates, the importance goes beyond even gun rights to vital areas of national security.  Will future courts grant even more rights to foreign terrorists held abroad, or will a court based more on judicial modesty return those questions to the legislature, where they belong?

The Supreme Court appointments made in the next term will have an impact that lasts twenty-five years.  Conservatives have legitimate issues with John McCain — but do they want Barack Obama making those appointments?