Where It Really Counts

Steven Calabresi and John McGinnis on why this election is crucial for the future of the Supreme Court and why they believe McCain could be trusted to make the right judicial choices as POTUS in today's Wall Street Journal (free for all):

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

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. Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.

Accordingly, for judicial conservatives electability must be a paramount consideration. By all accounts, Mr. McCain is more electable than Mr. Romney. He runs ahead or even with Hillary Clinton and Barack Obama in the national polls, and actually leads the Democratic candidates in key swing states like Wisconsin. Mr. Romney trails well behind both Democratic candidates by double digits. The fundamental dynamic of this race points in Mr. McCain's way as well. He appeals to independents, while Mr. Romney's support is largely confined to Republicans.

With many more Republican senators up for re-election than Democrats, the nomination of Mr. Romney could easily lead to a Goldwater-like debacle, in which the GOP loses not only the White House but also its ability in practice to filibuster in the Senate. Thus, even 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.

When it comes to the Court, winning is the only thing.