John McCain: A 'Yes, But' Man?

[WSJ_law_blog]

With Senator McCain set to address his judicial philosophy tonight in a speech at Wake Forest University, the WSJ’s Laura Meckler takes a hard look at just what that philosophy might entail. Her conclusion? Well, it’s not really that clear.

When it comes to hot-button legal issues, McCain seems to prefer the “yes, but” formulation. Yes, he opposes abortion, but he supports federal funding for research using tissue from aborted fetuses and embryonic stem cells. Yes, he is opposed to same-sex marriage, but he opposes a U.S. constitutional amendment banning the unions. In other words, writes Meckler, while McCain agrees with conservatives, he’s made a series of exceptions to their orthodoxy. As a result, while liberals think he’s a conservative, conservatives fear he is a liberal. (For past LB discussion of the merits of McCain’s judicial philosophy, click here.)

In tonight’s speech, according to a McCain adviser, he’ll articulate a conservative judicial philosophy that includes “strict interpretation of the Constitution” and antipathy for “judicial activism.”

But while McCain has praised Supreme Court justices Scalia, Roberts and Alito — and voted to confirm a string of conservative judges — he also participated in the “Gang of 14,” a group of senators who banded together to preserve the rights of the minority (at the time, Democrats) to filibuster judicial nominees. (According to the report, McCain will address his role in that controversy tonight.)

When asked in February what social issues are most important to him, McCain said, “It’s hard for me to rank them because a lot of us who are social conservatives focus on what we think are the threats to them,” he said. “It’s not so much that you have priorities. . . It’s very difficult for me. I can’t prioritize them for you.”

LB’ers: Hard-line social conservatives have criticized McCain for his position on gay rights. He opposes same-sex marriage, but he also opposes a constitutional amendment defining marriage as between a man and a woman, saying it violates states’ rights. What judicial philosophy accommodates both, if any?