Zywicki: Will McCain Make a Campaign Finance Reform Litmus Test?

Todd J. Zywicki
Professor, George Mason University Law School

(1) I don't know much about their views, but it seems unlikely that there would be any significant difference. They are both liberal Democrats and I would expect them to nominate liberal Democrats. The only real question would be how much they value race or sex preferences in which case their likely preferences seem obvious.

(2) The main question for McCain is whether he will turn fealty to McCain-Feingold into a litmus test for the Supreme Court. Few leading conservative thinkers believe McCain-Feingold to be constitutional, so that would significantly reduce the pool. There have also been reports that McCain would not nominate someone like Alito "who wears his conservatism on his sleeve," so that might suggest that he would disqualify some true conservative possibilities. I don't know who might qualify as a "maverick," other than a purported conservative who would actually support McCain-Feingold.

(3) The basic dynamic is that most of the older Justices on the Supreme Court who are closest to retirement seem to be liberals, namely Stevens and Ginsberg. Those are the seats most likely to be filled, so if conservatives are appointed that would dramatically change the balance. So that seems like both liberals and conservatives would be engaged.

Read the rest of Scoop08's High Court &A Series:
Part 1: The High Court Q&A Series
Part 2: Klarman: Obama, Clinton Justices Would Have High Legal Credentials
Part 3: Stakes Much Higher for Dems, Says Lazarus
Part 4: Zywicki: Will McCain Make a Campaign Finance Reform Litmus Test?
Part 5: Traditional Liberal, Conservative Labels Less Helpful, Says Purcell
Part 6: Tushnet: One Appointment Could Change Court Dramatically
Part 7: Court Will Stay Far to Right, Says Lessig