Bench Memos is ablaze today with a conflagration over John McCain's privately-expressed opinion that Justice Alito was a bad pick for SCOTUS because he "wears his conservatism on his sleeve." The reader bears in mind that McCain is the same Senator who, with Russ Feingold, sponsored the most effective curb on political speech to come out of Congress in decades. So, one reasonable interpretation of "wears his conservatism on his sleeve" might be "thinks that the First Amendment means what it says."
Whatever McCain meant by the statement, the statement is surely troubling. If McCain means that Alito is a judicial activist who substitutes conservative policy preferences for considered legal reasoning then the statement is simply wrong as a factual matter. This calls McCain's veracity into question. This is not to say that McCain lied. Perhaps McCain misrepresented the truth because he wasn't paying attention during the Alito confirmation hearings. (Was he asleep, bored, playing video games? I was 2000 miles from the Capitol yet I watched with intense interest.)
If McCain intended to equate originalism with conservatism, then we have a real problem on our hands, as Wendy Long explains.
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