McCain Speech to Shed Light
On Judicial Philosophy
May 6, 2008
John McCain steps out of his comfort zone Tuesday to address his judicial philosophy, a hot-button matter for social conservatives that encompasses abortion, guns and gay rights -- all topics on which Sen. McCain has rankled the right.
On nearly every score, Sen. McCain agrees with conservatives, but he has made a series of exceptions to their orthodoxy. As a result, while liberals think he is a conservative, conservatives fear he is a liberal.
These never have been matters that animated Sen. McCain's quarter-century in politics the way military or spending issues have. And while he considers himself religious, the likely Republican presidential nominee rarely speaks in public about religion or his personal faith.
Combined with his record of breaking with the party line on issues such as immigration, torture and campaign finance, this has led to a sense that Sen. McCain is something of a moderate on social policy as well. That impression hurts him with the social conservatives who form a critical part of his party's base, but it could help him with independent voters this fall.
It is hard to satisfy both, and when asked, Sen. McCain always emphasizes his conservative credentials. "I think I've been very strong on, quote, 'conservative social issues,' " he said in an interview.
At Tuesday's speech at Wake Forest University in Winston-Salem, N.C., he will articulate a conservative judicial philosophy and the principles he would use to appoint justices to the Supreme Court. That includes "strict interpretation of the Constitution" and antipathy for "judicial activism," a McCain adviser said.
In the past, he has praised Supreme Court justices Antonin Scalia, John Roberts and Samuel Alito.
Judges are a key issue for conservatives, who have concluded that they can't advance their agenda unless they have backing from the courts. The Tuesday speech is likely to tell them what they want to hear.
But Sen. McCain's record offers evidence for both sides of the culture wars. On nearly every hot-button issue, Sen. McCain has a "yes, but" answer.
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.
Yes, he has voted to confirm a string of conservative judges, but he annoyed hard-liners when he 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. He will address his role in that controversy Tuesday.
"Somewhat unfairly, a lot of conservatives feel that he sold out," said Curt Levey, executive director of the Committee for Justice, a conservative advocacy group. "He's been strong on judges, but he still has something to prove."
By any measure, Sen. McCain's positions are more palatable to conservatives than are those of Sens. Hillary Clinton or Barack Obama, a point that activists on all these issues make.
But Sen. McCain's public appearances reinforce the idea that these issues aren't at the top of his priority list.
In town-hall meetings, Sen. McCain makes a point to explain his positions on terrorism, taxes, the economy, energy and health care. But in his prepared remarks, he never mentions abortion, same-sex marriage, judges or gun rights. When asked, he often responds quickly and moves on.
"Imagine if you were an economic conservative and someone never talked about tax policy unless they were asked about it," said Charmaine Yoest, a vice president at the Family Research Council, a conservative advocacy group focused on social issues.
Asked whether she thinks Sen. McCain really cares about the abortion issue, she said, "I don't know, and that's his problem."
When asked in February what social issues are most important to him, Sen. McCain didn't directly answer. "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."
In January, he was discussing the type of judges he would appoint to the Supreme Court and said: "It's not social issues I care about. It's the Constitution of the United States I care about."
On abortion, a number of people believe that Sen. McCain supports abortion rights. He doesn't. At a town-hall meeting in March, he vowed: "I will continue my commitment to rights of the unborn so we can give every soul the chance to exist on this Earth."
Yet nearly one in four women who support abortion rights and also support Sen. McCain believe that he shares their views, according to a Planned Parenthood Action Fund survey of women in 16 battleground states.
Planned Parenthood, which supports abortion rights, also found that about half of these supporters weren't sure about Sen. McCain's position. Just under 20% knew his stand on abortion but supported him anyway.
In fact, with the exception of fetal-tissue and stem-cell research, he has a long and consistent voting record opposing abortion. He supports sex-education programs that promote abstinence until marriage without any mention of contraception.
On gay rights, he opposes same-sex marriage and voted against employment nondiscrimination legislation. He supports the current "don't ask, don't tell" policy on gays in the military and opposes expanding the federal hate-crimes law to include sexual orientation. But he also opposes a constitutional amendment defining marriage as between a man and a woman, saying it violates states' rights.
On gun rights, he opposed the assault-weapons ban and mandatory waiting periods. But he co-sponsored legislation requiring background checks at gun shows. The National Rifle Association was bitterly opposed to limits set in the campaign-finance legislation Sen. McCain spearheaded.
The candidate will address these issues directly on May 16, when he speaks at the NRA's annual meeting. "He's had a stellar voting record with us," said NRA spokesman Andrew Arulanandam, "but we've also had a couple of high-profile disagreements."