Samuel Alito

Now that Bryan Fischer has hit the big time, I think it is important to remind everyone of a simple fact: Fischer generally has no idea what he is talking about.

Remember a few weeks back when he was claiming that the ruling striking down Arizona's draconian law was unconstitutional on the grounds that the Constitution says the Supreme Court is to have "original jurisdiction" over "all cases...in which a State shall be Party"?  That argument turned out to be so ludicrous that even WorldNetDaily dismissed it as nonsense.

Well, Fischer is once again demonstrating his legal genius, blasting Judge Vaughan Walker for suggesting opponents of his Prop 8 ruling might not have standing to appeal.  Here's is Fischer's brilliant analysis:

Judge Walker appears oblivious to the blatant self-contradiction in his ruling. If Prop. 8 proponents do not have standing, what in the world was he doing allowing them to argue in his courtroom on behalf of natural marriage for two weeks?

Oh, that's right, it gave him the chance to be the center of the universe for one brief shining moment. For him to have denied standing would have deprived him of his fifteen minutes, and he wasn't about to put up with that. He granted standing just long enough to get his picture in every newspaper in the country and become the darling of the effeminate left. He even tried to become a daytime TV star until the Supreme Court smacked him down. And then, when his fifteen minutes were up, he tried to tell everybody to go home.

...

The Ninth Circuit has scheduled a court date for the appeal of Judge Walker's ruling, but curiously have directed the proponents of Prop. 8 to come before it and address the issue of standing.

What the Ninth Circuit has done, in all its infinite judicial wisdom, and without apparently even realizing it, is to settle this question before it's even argued in court. For if the proponents have standing to argue standing, then they have standing. If they have no standing, they shouldn't have been scheduled even to make arguments for standing.

The mere fact that the Ninth Circuit is inviting them into court to make the case for standing means, if logic and consistency mean anything, that the court has already decided this question in the affirmative.

We'll see if they're rational enough to figure out what they've done here. Being as how they're liberals, all bets are off on that one. They can hardly now rule against the standing of Prop. 8 proponents, because a higher court will say, well, if they had no legal right to be there, why did you even let them in your court in the first place?

First of all, Walker didn't say Prop 8 proponents didn't have standing in the initial case, he said they might not have standing to appeal ... and the issue standing is going to be an important question in moving the case forward in the appeals process: 

[A]dvocates of Prop 8, who are launching the appeal, may not have the necessary standing to carry it forward. The case is titled Perry v. Schwarzenegger, with Gov. Arnold Schwarzenegger and other officials in the position of defending the ballot initiative. But those officials, who are sympathetic toward gay marriage to varying degrees, are not inclined to appeal Walker's ruling.

Under Supreme Court precedent, it's unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can't show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed "grave doubts" about the ability of such groups to challenge rulings that strike down ballot initiatives.

"There is a very serious standing issue," said George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure. The Arizona precedent, he said, "came right up to the edge" of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are "no friends of expanding standing." Setting high standards for standing has been one of several gatekeeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts.

The issue of standing is the very question the Ninth Circuit is going to be examining and why the court is explicitly telling Prop 8 supporters who are appealing Walker's ruling "to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing."

The fact that Prop 8 supporters are going to be in court does not prove that they have standing because that is the very question they are going to be in court trying to decide.

I'll admit that the inner workings of Congress can be rather confusing, but I didn't realize that every piece of legislation that had been passed by the Senate had to be revisited so that a newly elected member could vote on it, which is pretty much what the American Center for Law and Justice is demanding in this email they just sent out:

With Sen. Brown's victory, it's reported that the Senate may not vote on the health care bill, and instead have the House approve the measure - leaving incoming Sen. Brown without an opportunity to vote on health care reform.

But any attempt to shut out Sen. Brown from the legislative process circumvents this election and clearly denies the will of the people.

It's time to put a stop to the flawed government-run, pro-abortion health care program that's been on a fast-track since Day One. Congress must respect the outcome of this pivotal election and let incoming Sen. Brown vote on health care ... NO QUESTIONS ASKED.

Really?  Is that how things work?  Newly elected candidate must be given an opportunity to vote on things that happened before that person was even elected or else it "denies the will of the people"? 

If that is the case, can we go back and vote on the confirmations of Chief Justice John Roberts and Justice Samuel Alito now that Democrats have a sizable majority in the Senate? 

And, for what it is worth, the ACLJ is also warning that it has a "team of lawyers" ready to pounce  should their be any delay in seating Brown: 

We’ve assembled a team of lawyers to determine what legal action could be taken should Democrats refuse to recognize or delay the outcome of this election. We have produced a legal memorandum that focuses on election law in Massachusetts for the special Senate election.

Elections have consequences and the Democrats must understand that the consequences of a Sen. Brown victory mean it’s time to put a stop to the flawed government-run, pro-abortion health care program that’s been on a fast-track.

So, who wants to listen to an hour and a half of James Dobson and former special assistant to President George W. Bush and current Focus on the Family Vice President Tim Goeglein count the ways in which they love President Bush and detail what a great president he was?

Nobody?

Well, I don't blame you, which is why I've edited it down to this nine minute audio clip in which Goeglein declares that "George W. Bush was the instrument in God's hand" that kept America safe; that Bush was just like George Washington; that Bush was the "most pro-life and pro-family president in the history of the United States" as demonstrated by his judicial nominations, including John Roberts and Samuel Alito; that his heart is breaking that all of Bush's work in this regard is being unraveled by President Obama; that it is not possible to be President of the United States and be pro-choice; that "there can be no compromise on the question of the defense of the innocent pre-born" and that their anti-choice efforts will be "vindicated ... by divine providence" when Roe v. Wade is finally overturned; that Bush is a "great thinker" who is "powered by integrity" which is rooted in his faith in Christ and that, in the years ahead, historians will look back and recognize Bush as the great president that he really was:

One section I didn't include was the ten minute explanation Goeglein gave about the circumstances under which he resigned from his position in the White House which, not surprisingly, he used to further demonstrate just what a loving, forgiving, and all-around remarkable human being George W. Bush truly is. 

If, down the line, you start hearing people claim that President Bush was never really committed to the  Religious Right agenda or that the Religious Right never really loved him, you can just play them this clip of Dobson and Goeglein's love note to George W. Bush, the greatest human being who ever lived.

UPDATE: The following transcript of the broadcast was prepared by The Colorado Independent:

James Dobson: There are undoubtedly some people listening to us today who are going to sneer at what you just said because George W. Bush was certainly one of the most hated presidents that we’ve had — certainly in recent memory.

He was maligned at every turn but I know you admire him greatly, don’t you?

Tim Goeglein: I do, indeed. In fact, I see George W. Bush as a great president. And I believe that George Walker Bush was right about the most important things that came across his presidency in those eight years, Dr. Dobson.

First, without peer, is that he saw the greatest external threat to our national security. And he saw it immediately. And he prosecuted the war in such a way that from 9/11 and the terror and terribleness of the day — and I was in the White House that day — until the last minute of the last hour of his presidency, George W. Bush kept us safe.

Providence kept us safe.

But George W. Bush was the instrument in God’s hand as the leader of the free world.

And every problem imaginable that comes across your desk when you’re the President of the United States. But history will be kind to George Bush because they will see that through a series of very important decisions his leadership, his personal character and integrity added up to the forbearance of another direct attack on the United States of America.

The primary role of the Commander in Chief is our national security. And, yes, I believe that part of the greatness of George W. Bush was not to see this as an intelligence problem primarily. To not see it as a police action.

Dobson: Yeah, yeah.

Goeglein: But to actually see it for what it was. Of course, this was the great blessing of our first president George Washington — the original George W. — who, you know, the thing that made him in Thomas Flexner’s landmark biography “The Indispensable Man,” the greatest trait of Washington was to see things as they were and not as he wanted to see them.

That was George W. Bush’s gift.

When he came to this war, he immediately — upon being told of the attacks — knew that this was war and that we were being attacked existentially by radical Islam.

But the one thing that we did not talk about, I think is the greatest achievement of the former president, beyond the security question, is the fact that George W. Bush is the most pro-life and pro-family president in the history of the United States.

Dobson: Now, I’ve said that on many, many occasions here at Focus on the Family and I want you to address it. George Bush is the most pro-life and pro-family president in history. Validate that statement for us.

Goeglein: I was getting ready to come to the broadcast and I literally jotted these down. These are quick snapshots of the Bush Administration on life.

• Signed and reinstituted the Mexico City Agreement
• Signed the Unborn Victims of Violence Act
• Signed the Born Alive Infants Protection Act
• Vetoed the partial birth abortion bill

And, very importantly, fought it in several appellate courts.

He had the most pro-life, anti-cloning provision, ever. He instituted the most important pro-life provision in his presidency which was a pro-human dignity, pro-life stem cell research policy.

He created the conscience clause laws provisions.

I may say, as well, that George W. Bush funded pro-marriage programs. Was the greatest funder of abstinence education in the history of the United States.

He gave Henry Hyde the Medal of Freedom, the most pro-life member of the United States Senate or House, ever.

And I think very importantly, Dr. Dobson, and this is something that I think that is at the pinnacle of pro-life, pro-family achievement in this administration, the Bush administration, he elevated John Roberts to be the Chief Justice of the Supreme Court for the United State of America. He appointed Samuel Alito to be an Associate Justice …

Dobson: A great justice too.

Goeglein: … two great justices. And, this is something people do not know, that George W. Bush nominated and confirmed over 35 percent of sitting federal judges.

Dobson: So his impact on the judiciary is going to continue for a long time.

Goeglein: It is huge. It is huge and it’s lasting.

Dobson: Does it break your heart what is about to happen to the judiciary?

Goeglein: It more than breaks my heart. To watch it unravel in a few short months by a new president is a heartbreaking, disappointing and difficult thing to watch. It is systematic and it is categorical. And we have gone in America from the most pro-life president in the history of our country to, unfortunately, the most pro-abortion president that we’ve ever had.

It is not possible to president of the United States of America, in the early part of the 21st century, and to know what we know morally and technologically and to find any reason other than a full-throated advocate for the pro-life position.

Dobson: Yeah, when President Obama spoke recently at Notre Dame about abortion he talked about our need to come together, to find areas of agreement. He said that we needed to work together. We needed to accommodate each other.

But you can’t compromise with evil. I mean, in what way are you going to compromise with the killing of babies?

Goeglein: There is no compromise. There can be no compromise on the question of the defense of the innocent pre-born.

All of the millions of people who have worked in both in the leadership and the vanguard of the pro-life movement, they will be vindicated. If by divine providence Roe v. Wade were to be overturned. And we were to start again in the United State on the question of life.

It is simply unacceptable that from 1973 until 15 seconds ago, that something like 45 million innocent pre-born lives have been snuffed out in defense of words like “choice.”

George W. Bush’s greatness as a human being, apart from the presidency, is that he has an inner moral compass that is self-confident. That is loyal. That is powered by integrity.

But Dr. Dobson it wells up from his faith in Christ. This is who the man is.

He is a great thinker. He is a person who prays and works to make the right decision. He has an inner confidence and peace in his soul that that was the right thing.

Dobson: And nothing is going to shake his confidence.

Goeglein: I think that is absolutely right. And that’s why I’m actually very confident and hopeful that in the years ahead — with the benefit of time and space — that historians will look back at those remarkable, incredibly eventful eight years, and say, you know, he made the right decisions about the biggest things during those eight years.

And, yes, maybe he will not be remembered, you know, of Churchillian, you know, eloquence. Maybe he will not be remembered for X, Y and Z. But when it comes to the questions of national security and war, when it comes to the questions of the right to life and when it comes to the questions of our constitutional Republic, national sovereignty and constitutional formulation of the Supreme Court — above all when it comes to the innocent pre-born people will say he got those big ones right.

Americans United for Life has sent a letter to the Senate demanding exhaustive hearings on President Obama's nominee to replace Justice David Souter:

When the Senate Judiciary Committee gathers to hold hearings on a Supreme Court nominee, one pro-life group tells the panel's chairman it wants a full discussion of where the nominee stands on abortion. The letter comes from Charmaine Yoest, the president of Americans United for Life.

"The most important question a nominee for the Supreme Court must answer is to articulate their judicial philosophy: will they advance an agenda that limits the right of the people to determine the content of abortion-related laws through the democratic process?" she writes.

"In the days ahead, we look to our Senators to uphold their duty to raise serious questions on the nominee’s judicial philosophy and reject any nominee who places personal preference over upholding the Constitution," the AUL leader adds.

Should her organization not like the answers, Yoest promises an immediate response.

"We will oppose any nominee to the Court who believes social activism trumps interpreting the Constitution," she says.

David Weigel of the Washington Independent profiles several of the right-wing judicial activist groups:

Curt Levey sometimes wears a lapel pin with the faces of Justices John Roberts and Samuel Alito and the legend “Thanks, W.” Once in a while he swaps that out for another button, with the same portraits of George W. Bush’s two high court appointments, but a more forward-looking slogan: “The kind of change we can believe in.”

“I used to work to confirm good judicial nominees,” Levey told TWI this week. “Now I’m trying to limit the damage Barack Obama can do.”

Levey is the executive director of the Committee for Justice, one of the hubs of a far-flung but close-knit group of conservatives who plan on holding President Barack Obama’s first Supreme Court pick up to a magnifying glass. During the Bush years, Levey worked at the Center for Individual Rights, a libertarian law firm that made its biggest impact with the landmark Gratz v. Bollinger and Grutter v. Bollinger affirmative action cases. Levey went on to the Civil Rights Division of the Department of Justice, then left to work on Supreme Court confirmations with conservatives who had prepped for these fights ever since the failed 1987 nomination of Judge Robert Bork.

Movement conservatives are in a position to oppose the nomination of almost any nominee that the president puts forward. In conversation with TWI, activists portrayed the coming confirmation hearings as a chance to peel the bark off of the president’s bipartisan image, to unite the conservative movement, and to learn lessons for future hearings with higher stakes. Few imagined that the president could get a much more liberal pick than retiring Justice David Souter through the Senate. Their focus was not so much on defeating this pick — an incredibly difficult task with only 40 Republican senators — but on carving out an election issue for the 2010 midterms and on building capital for a theoretical future battle to replace one of the court’s conservatives.

“This can be an educational moment for the American people,” said Gary Marx, the executive director of the Judicial Confirmation Network. “This is a chance to reaffirm the meaning of judicial restraint and explode the myth that Barack Obama is trans-partisan leader.”

They have some strength in numbers. While Levey cautioned that “the groups on the right are smaller than the groups on the left,” such as People for the American Way, he put together one of the first intra-movement conference calls on the coming Supreme Court fight days after the 2008 election, bringing on around 50 people. In the months since, he has collected around 30 short dossiers (averaging three pages each) on possible Obama nominees. The quiet coalition that’s ready to scrutinize Obama’s nominees includes several people who faced Democratic wrath during the Bush years, such as Tim Goeglein, a former White House aide who is now a vice president at the political arm of Focus on the Family, and Manny Miranda, a one-time aide to former Sen. Bill Frist (R-Tenn.) who spent the Roberts and Alito confirmation battles at the head of his own effort, the Third Branch Conference.

“A lot of the old Bush people went on to law firms,” Levey explained. “No one group has the resources to do 30 research memos, but by pooling out work to people and recruiting pro bono help, we’ve got more than we need at this point.”

Finally, there is lots of speculation about how Republicans and the Right would respond to a gay SCOTUS nominee, with Sen. Jeff Session saying that it wouldn't be "an automatic disqualification" while Sen. John Thune is not so sure:

“I know the administration is being pushed, but I think it would be a bridge too far right now,” said GOP Chief Deputy Whip John Thune. “It seems to me this first pick is going to be a kind of important one, and my hope is that he'll play it a little more down the middle. A lot of people would react very negatively.”

The interesting this about Thune's statement is that it sounds an awful lot like the statement Tony Perkins made earlier this week:

"I think that would be a bridge too far for him to be honest because that would enter a whole new element into the debate that I don't think he's ready for," said Tony Perkins of the Family Research Council. "A parallel to that would be Bill Clinton's gays in the military battle, which really hurt his agenda from that point forward."

Perkins said his group would not investigate anyone's sexual preferences and planned to focus on a nominee's judicial views. "The issue is the ideology," he said.

Ed Whelan has a piece in the latest edition of The National Review that has been posted on the Ethics and Public Policy Center website in which he hails the “appointments of Chief Justice John Roberts and Justice Samuel Alito as two of [President Bush’s] best decisions” before launching into the by-now standard Republican complaint that Bush’s judicial nominees faced unprecedented obstruction at the hands of Democrats: 

President Bush's record on lower-court appointments is much more mixed. Let's begin with the numbers. Bush appointed 62 judges to the federal courts of appeals. That's even fewer than the 65 that President Clinton appointed, amidst bitter Democratic complaints and media buzz about a confirmation slowdown by Senate Republicans. Bush's total also includes three of Clinton's unsuccessful nominees whom Bush renominated -- two in 2001 in unrequited gestures of goodwill, and one in 2008 as part of a Sixth Circuit deal. The numbers for the federal district courts are even worse: 261 Bush appointees versus 305 Clinton appointees. The Bush numbers are all the more disappointing as Republicans controlled the Senate for more than half of the Bush presidency, whereas Clinton enjoyed Democratic control for only two of his eight years.

Back in October, I tried to debunk this sort of misleading comparison by noting that one cannot accurately compare confirmation rates by simply citing the total number of judges confirmed – rather, one must compare the overall percentage of nominees confirmed to get an accurate comparison; and by that measure, President Bush’s nominees fared better than did President Clinton’s.  But since this claims keeps popping up, I suppose I should re-post my last explanation … and considering that there do not appear to have not been any new nominations or confirmations since I first wrote it, the numbers are still accurate:

According to CRS, President Reagan put forth a total of 423 District and Circuit Court nominees and saw 375 of them confirmed; a confirmation rate of 88%. President Clinton, by contrast, put forth more nominees and had fewer confirmed:  372 of 488, for a confirmation rate of 76%. 

In comparison, according to the White House’s own figures cited in the Washington Post article above, “324 of 376 federal court nominees have been confirmed during Bush's tenure.”  That gives him a confirmation rate of 86%, well above President Clinton’s confirmation rate.  In fact, for Bush to lower his confirmation rate to match that of Clinton, he'd have to nominate another 50 or so judges before he leaves office in a few months.

Despite relying on the use of raw confirmation totals instead of the more accurate confirmation rates, Whelan deserves credit for using correct figures and overall having a solid understanding of the issue. Sadly, the same cannot be said for the Texas Eagle Forum which, as the Texas Freedom Network notes, has jumped into the fray regarding the selection of the next Speaker of the Texas House of Representatives by likening those who are not supporting their preferred right-wing choice to the senators who “stifled President Bush’s court appointments”: 

Remember how the “gang of 12″ US Senators stifled President Bush’s court appointments? This type of renegade politics is now being practiced by a “gang of 11″ TX State Representatives concerning the election of the next Speaker of the House.

Do you remember the “Gang of 12”?  I sure don’t … though I do remember the “Gang of 14.”  It seems to me that if you are trying to rile up your supporters by likening current events to one of the Right’s bitterest memories, the least you can do is be sure to get the name right.

Just last month I wrote about the Judicial Confirmation Network, a bogus grassroots organization set up by Jay Sekulow to help press for confirmation of President Bush’s judges back in 2005.

As I noted then, the JCN dedicated itself to fighting for the confirmation of the likes of Priscilla Owen and Janice Rogers Brown in preparation for confirmation fights over Supreme Court nominees.  True to form, JCN was active in defending both John Roberts and Samuel Alito and ginning up right-wing support for their confirmations.  But then an interesting thing happened:  Samuel Alito was confirmed and the JCN all but ceased to operate.  

From January 21, 2006 when they issued this press release, they issued just a handful of releases over the next two years (8, by our count) until they swung back into action in August.  

And now, with the election gearing up, the JCN is back on the scene announcing a new million dollar ad campaign targeting Barack Obama on the issue of the courts by linking him to Tony Rezko, Jeremiah Wright, and William Ayers:

The Judicial Confirmation Network (JCN) today launched a $1 million first phase of a nationwide grassroots campaign, which includes television ads in national and targeted markets, to raise awareness and recruit activists on the critical issue of the U.S. Supreme Court.

…

The text of the ad:

Wendy: With the help of hundreds of thousands of Americans, the Judicial Confirmation Network fought for the nominations of Supreme Court Justices John Roberts and Sam Alito. The next President may nominate 4 new Justices. So we'd like you to see this....

VO: Choosing the right Justices is critical for America. We don't know who Barack Obama would choose, but we know this: He chose as one of his first financial backers a slumlord now convicted on 16 counts of corruption. Obama chose as an associate a man who helped to bomb the Pentagon and said he "didn't do enough." And Obama chose as his pastor a man who has blamed America for the 9/11 attacks. Obama chose to associate with these men, while voting against these men.

Wendy: Please join the Judicial Confirmation Network. We need a Supreme Court that respects the Constitution and Justices who won't legislate from the bench. Judicial Confirmation Network paid for this message and is responsible for it.

Considering that the JCN had been all but defunct for more than two years while its two employees were busy working on Mitt Romney’s presidential campaign, it raises the question of just how they managed to raise a million dollars for ads despite seemingly doing no fund raising and only having re-opened their bogus front-group a little over one month ago.

When we wrote about The Call a few weeks ago, we noted that their mission claims to be less about politics and more about “fasting and prayer for the benefit of the nation.” Of course, such claims are somewhat undermined by the fact that they tend to hold events in Washington, DC just before presidential elections.  

We also noted that, prior to the event, Tony Perkins, Mike Huckabee, and others were scheduled to join The Call’s founder Lou Engle for a press conference – one that seems designed to be openly political and to counter the joint John McCain-Barack Obama event at Rick Warren’s Saddleback Church:

Former Arkansas Gov. Mike Huckabee (R) and top evangelical leaders will join forces next week to amplify issues such as abortion, same-sex marriage and stem-cell research in the race for the White House.

Huckabee, Family Research Council President Tony Perkins, and Lou Engle, the leader of The Call, a young adult movement, plan to hold a news conference Friday calling on Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.) to spend more time talking about issues that matter to evangelical voters.

According to Engle, the goal of the event is to “drive the issue of abortion like a wedge into the soul of the nation” and the focus of the press conference seems to be to put added pressure on McCain to pick a suitable running mate, start pushing their issues, and overall alleviate their concerns about him: 

Evangelical leaders are urging McCain, a lifelong opponent of abortion rights, to commit to pushing a constitutional amendment on gay marriage. Social conservative leaders also want him to take a firm position on banning federal funding for stem-cell research.

“I don’t trust John McCain,” Engle said.

McCain’s pledge to appoint strong anti-abortion judges like Supreme Court Justices John Roberts and Samuel Alito does nothing to alleviate Engle’s worries.

“Ronald Reagan promised that and he gave us some of the worst judges we have today,” he said.

Over the last several months, one of the ways John McCain has been working to sell himself to the GOP’s skeptical right-wing base has to repeatedly promise them that, if elected, he will appoint justices like John Roberts and Samuel Alito to the Supreme Court – an effort that has recently been paying dividends.  

But over the weekend, McCain sought to woo supporters of Hillary Clinton and, according to press reports, seemed to be trying to downplay that promise.  As Politico reported:

Bower said he'd liked McCain's answer on judges, in which he "pointed out that he supported Bill Clinton with both Ginsberg and Breyer."

For its part, the New York Times reported something similar:

Mr. McCain, who opposes abortion rights, also promised he would not perform a litmus test on potential judges.

Not surprisingly, the Barack Obama campaign responded to McCain’s apparent back-tracking by highlighting this 2005 statement from long-time McCain supporter Gary Bauer claiming that the reason he supported McCain over George Bush in 2000 was McCain’s explicit promise that he would indeed have a pro-life litmus test for his nominees:

Somewhat surprisingly, McCain had the support of Gary Bauer, the social conservative, who had dropped out of the race by that time. “I wanted a commitment from either George Bush or John McCain that if elected he would appoint pro-life judges to the Supreme Court,” Bauer told me. “Bush said he had no litmus test, and his judges would be strict constructionists. But McCain, in private, assured me he would appoint pro-life judges.”

In an attempt to clear up the matter, CBN’s David Brody contacted Bauer, who is now trying to spin the discrepancy in a way that suggests that Obama is “the one with a credibility problem”:  

"When I met privately with Senator McCain in 2000 he did not tell me that he would have a pro-life "litmus test" for judges. Instead he described the type of judicial philosophy he would require in his judicial appointments. I interpreted that judicial philosophy to be one that would reject judicial activism.

"Senator Obama is the one with a credibility problem, not Senator McCain. Senator Obama says he wants a compassionate American where the 'little guy' is protected. Instead he proudly supports partial birth abortion, and abortions in the last months of pregnancy. He abandons the littlest guy of all - our unborn children."

So Bauer would have us believe that the reason he didn’t support Bush in 2000 was that Bush wouldn’t promise a litmus test while McCain would, but that, now that he thinks about it, said litmus test really wasn’t a litmus test at all, it was really just a vague statement about judicial philosophy - a statement about philosophy that Bush was apparently unwilling to make to Bauer despite the fact he was regularly making exactly that sort of statement in public settings, such as the first debate with Al Gore when he said “I don't believe in liberal activist judges. I believe in strict constructionists. Those are the kind of judges I will appoint."

If anybody had a “credibility problem” here, it’s Bauer.

As John McCain prepares to deliver his remarks on the future of the judiciary today in North Carolina, it looks like he will be under some close scrutiny from the Right, who are growing fed up with his seeming reluctance to throw them red meat:

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."

As such, many of them are launching a campaign to make the issue of judges a centerpiece of the upcoming election:

Conservative leaders also want the party to embrace language that would instruct Senate leaders to make the confirmation of nominees a higher priority. Conservatives say Senate Minority Leader Mitch McConnell (R-Ky.) must press Democrats harder to confirm several controversial nominees, such as D.C. Circuit Court nominee Peter Keisler and 4th Circuit Court nominee Robert Conrad Jr.

Manuel Miranda, a former aide to ex-Senate Majority Leader Bill Frist (R-Tenn.), circulated a draft Monday of principles for the GOP platform committee to consider. Several conservative leaders quickly endorsed it. 

Paul Weyrich, chairman of the conservative Free Congress Foundation, said he supports including the language on judicial nominees in the party platform.

“I think the more we particularize that whole issue, the more people focus on the topic,” Weyrich said. Making detailed guidelines on judicial nominees part of the platform would also help social conservatives hold McCain to account if he is elected president.

“You can compare what the party says with any subsequent action by its nominees,” said Weyrich. 

And while McCain is delivering his remarks, Republican National Committee officials will be courting right-wing leaders on this effort having “invited social conservative leaders based in and around Washington, D.C., to attend a meeting Tuesday morning where former Sen. Dan Coats (R-Ind.) will give them a preview of McCain’s remarks.”   

Already McCain surrogate Sen. Sam Brownback is making the rounds assuring the Right that it’ll like what it hears and, judging by excerpts of McCain's remarks and preliminary press coverage, it certainly looks like that will be the case:  

Republican presidential candidate John McCain said on Tuesday he would appoint judges in the mold of conservatives John Roberts, Samuel Alito and former Chief Justice William Rehnquist if he were elected in November.

In an excerpt from a speech McCain was to give in Winston-Salem on Tuesday, the Arizona senator said he would "look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint."

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference," McCain said.

In fact, so sure is the McCain camp that this speech will win over the Right that it is reaching out to them via GOPUSA seeking donations:   

We have a lot at stake in this presidential election. As a nation, we face many challenges that will require real leadership from our next president. I have said before that this election will be about the big things, not the small things, and I write to you today about one big issue in particular - the future of the U.S. Supreme Court. If one of my Democratic opponents is elected in November, you can rest assured that given the opportunity to appoint judges, they will appoint those who make law with disregard for the will of the people.

There may be at least two vacancies on the United States Supreme Court during the next presidential term. As president, I will ensure that only those judges with a strict interpretation of the Constitution of the United States are appointed. I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

If you want judges who have a clear, complete adherence to the Constitution of the United States and who do not legislate from the bench to serve on the U.S. Supreme Court, then I ask that you join my campaign for president today by making a financial contribution.