Inches from the long-sought goal, ex-Giuliani lawyers back McCain

By Charlie Savage

With the Republican race for the presidential nomination essentially down to two candidates heading into Super Tuesday, the conservative legal movement born during the Reagan Revolution is hedging its bets between Mitt Romney and John McCain.

Late last month, after Fred Thompson dropped out, the team of high-profile Republican lawyers who had backed him flocked to the Mitt Romney campaign, which had already attracted a sizable roster of the GOP legal establishment. The only other candidate with a comparable list of star attorney endorsements was Rudy Giuliani. Now, with Giuliani out, several conservative legal stars who had been with the former New York mayor -- including former solicitor general Ted Olson, an icon of the Federalist Society set -- have signed on with McCain.

Today, two other influential ex-Giuliani lawyers -- Steven Calabresi and John McGinnis -- published an op-ed in the Wall Street Journal explaining their decision. As personal endorsements go, it was pretty much the opposite of passionate. It's not that they love McCain, who they noted backed campaign-finance reform and who helped blocked a push to change Senate rules so Democrats could no longer filibuster President Bush's most conservative judicial nominees -- both positions that are anathema to movement conservatives. But, they explained, McCain is more likely to win the White House in November than Romney. That means a McCain nomination is more likely to keep the conservative legal movement in a position to appoint like-minded Supreme Court justices:

We make no apology for suggesting that electability must be a prime consideration. The expected value of any presidential candidate for the future of the American judiciary must be discounted by the probability that the candidate will not prevail in the election. For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. The party lives to fight another day and can reverse the bad policies of an intervening presidency. The judiciary is different. On Jan. 20, 2009, six of the nine Supreme Court justices will be over 70. Most of them could be replaced by the next president, particularly if he or she is re-elected. Given the prospect of accelerating gains in modern medical technology, some of the new justices may serve for half a century.

There is much to support Calabresi's and McGinnis's diagnosis of the 2008 election's importance for the future of the Supreme Court. Four movement conservatives -- Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito -- are on the nine-member court already. The latter three justices are also the court's youngest members, so upcoming vacancies are more likely to mean the replacement of one or more liberal justices, including 88-year-old John Paul Stevens, than one of the four lock-step conservatives.

Thus, the next president, especially if he or she also wins re-election in 2012, will be in a position either to give adherents of the Federalist Society philosophy a dominating majority on the court for decades, or to block the conservative legal revolution just a few inches from the goal-line. In the short-term, a fifth movement conservative on the court would have dramatic consequences for the shape of constitutional law over such currently controversial matters as abortion rights, the death penalty, gay rights, affirmative action, environmental regulations, and the scope of the president's power as commander-in-chief. And long after the Iraq War is just another chapter in the history books, the next president's choices for the Supreme Court will still be shaping the outcome of enormously important controversies that are yet unforeseen.

It was a point Olson underscored when he endorsed McCain last week: "John McCain has a deep-rooted conservative philosophy and I trust him to appoint strict constructionists, like Chief Justice Roberts and Justices Scalia, Thomas and Alito, to judicial positions."

Many of the players in the GOP primary endorsement game came of age during the Reagan Revolution years, when the movement began as a conservative backlash against several decades of "liberal activist" court rulings highlighted by the Roe v. Wade abortion rights case. Calabresi is a veteran of the Reagan-era Office of Legal Counsel at the Justice Department and is also one of three co-founders of the Federalist Society. McGinnis worked in both the Reagan-Bush and Bush-Quayle administrations' Office of Legal Counsel. Another Federalist Society co-founder, former Indiana congressman David McIntosh, was the chair of the Thompson group and is now the co-chairman of the Romney lawyers group, along with its original chair, Douglas Kmiec, who ran the Office of Legal Counsel during Reagan's final years in office.

And long before he was the Bush-Cheney solicitor general, Olson was the first head of the Office of Legal Counsel for Reagan -- and the plaintiff in the most important Supreme Court case involving the Unitary Executive Theory, a Reagan legal team invention that, if true, would dramatically expand presidential power. When Olson's case came before the Supreme Court in 1988, the Reagan team lost 7-1 -- with the only the freshly-appointed Justice Scalia embracing the Unitary Executive Theory as true.

At the time, reaching the goal of winning five reliable votes for the conservative legal movement's revolutionary philosophy must have seemed a wild dream. But now, with Thomas, 59, Roberts, 53, and Alito, 57, wearing black robes alongside the 71-year-old Scalia, the endgame may be at hand -- one way or another.

"Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage [of a Clinton or Obama win], especially to the Supreme Court," Calabresi and McGinnis wrote. "Accordingly, for judicial conservatives electability must be a paramount consideration. By all accounts, Mr. McCain is more electable than Mr. Romney. . . . [E]ven if we believed that Mr. Romney's judicial appointments were likely to be better than Mr. McCain's -- and we are not persuaded of that -- we would find ourselves hard-pressed to support his candidacy, given that he is so much less likely to make any appointments at all."