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Sen. John McCain doesn't want more 'liberal' justices on Supreme Court

Tuesday, October 11, 2016

Native women led a rally at the U.S. Supreme Court on December 7, 2015. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Sen. John McCain (R-Arizona) has parted ways with Donald Trump yet he stands with the Republican party's top nominee when it comes to filling the vacancy on the nation's highest court, an issue of great importance to Indian Country.

The U.S. Supreme Court is down to eight justices following the death of Antonin Scalia in February. But Republicans in the Senate -- including McCain -- have refused to consider a replacement.

During a debate on Monday evening, McCain explained why. Like Trump, who has hailed Scalia as a conservative role model, he doesn't want to see the court move in a more "liberal" direction.

"I would much rather have eight Supreme Court justices than a justice who is liberal," McCain said when pressed for an explanation regarding his refusal to consider Merrick Garland, a well-regarded jurist whom President Barack Obama has nominated to the court.

McCain singled out Justice Ruth Bader Ginsburg, who was nominated by former president Bill Clinton, a Democrat, and Justice Elena Kagan, who was an Obama pick, as too liberal for his tastes. They typically side with Indian interests in cases before the court and they happen to be two of the only three women on the court.

"Their actions, in my view, are not in keeping with my interpretation of the Constitution," said McCain, who is seeking a sixth term in office. "This is what makes this election a very, very serious election."

John McCain and Ann Kirkpatrick met for the debate on October 10, 2016. Photo by Cronkite News

McCain's stance drew a rebuke from his opponent, Rep. Ann Kirkpatrick (D-Arizona). She noted that the Senator voted for Garland when he confirmed for the D.C. Circuit Court of Appeals, which has emerged as an important court for Indian law cases.

"We're tired of that kind of obstructionism in Arizona," said Kirkpatrick who is hoping to unseat McCain next month.

Indian Country has been inclined to agree. The National Congress of American Indians, which is meeting in Arizona all week, has called on the Senate to fill the vacancy on the court.

But with Garland's nomination going nowhere, the next president will most likely be responsible for naming Scalia's replacement. Trump has vowed to choose from a list of nearly two dozen candidates -- almost all of them are unfamiliar with Indian law -- if he wins the election next month.

"I am looking to appoint judges very much in the mold of Justice Scalia," Trump said during a debate on Sunday evening. He added that his list is filled with people who "respect the Constitution of the United States," a position embraced by McCain.

Arizona PBS on YouTube: 2016 U.S. Senate Debate

When it comes to potential nominees, Hillary Clinton, the Democratic nominee for president, has not been as specific as Trump, whose list was seen as a way to assure conservatives of his intentions. But she envisions a very different Supreme Court than of her rival and of McCain.

"I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don't always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise," Clinton said during Sunday's debate. "I want a Supreme Court that will stick with Roe v. Wade and a woman's right to choose, and I want a Supreme Court that will stick with marriage equality."

She added: "I want a Supreme Court that doesn't always side with corporate interests. I want a Supreme Court that understands because you're wealthy and you can give more money to something doesn't mean you have any more rights or should have any more rights than anybody else."

A record four Indian law cases went before the justices during their last session and tribal leaders breathed a sigh of relief when no damage was inflicted in disputes affecting reservation boundaries, tribal court jurisdiction and protections for Native women. But they know the next occupant of the White House will play a big role in shaping the court for decades to come.

“It’s very important for tribes and NCAI this week to talk about what we want out of a presidential candidate," Governor Stephen Roe Lewis of the Gila River Indian Community said on Sunday.

Richard Guest of the Native American Rights Fund at the National Congress of American Indians 73rd annual convention: "During the 15 years of the Tribal Supreme Court Project @SCOTUS decisions in favor of tribes has risen from 18% to 40%." Photo by NCAI

Trump has remained silent on Indian issues while Clinton has vowed to "nominate qualified judges who understand tribal sovereignty and the government-to-government relationship." She also promises to appoint tribal citizens to top positions in her administration but Lewis said that commitment must go even further.

"We can’t just be satisfied with having a Native American as the Assistant Secretary to the Bureau of Indian Affairs," said Lewis, who supports Clinton's candidacy. "We have to look all the way to the Supreme Court,"

McCain, a former two-term chairman of the Senate Committee on Indian Affairs, is due to address NCAI's 73rd annual convention on Wednesday morning. Although he often appeared at the organization's events in the past, he all but disappeared from the agenda around the same time as his failed 2008 Republican presidential bid.

Kirkpatrick, who was born and raised on the Fort Apache Reservation, home to the White Mountain Apache Tribe, has not been given a slot on the NCAI agenda. Although Native Americans represent 5.3 percent of the population in the state, which is home to more than 20 tribes, she was the only one who brought up the first Americans during the debate on Monday.

"We have tribes that are on the border -- I visit with them -- and I have friends who are ranchers down there," Kirkpatrick said in response to a question about issues along the U.S.-Mexico border.

The Cocopah Tribe, the Pascua Yaqui Tribe and the Tohono O'odham Nation have reservations at or near the border.

"The border will be secure when they feel secure, and they don't," Kirkpatrick added.

With additional reporting by Tara Gatewood from Phoenix, Arizona.

More on the U.S. Senate Debate:
McCain touts experience, Kirkpatrick says it’s time for a change in Senate debate (Cronkite News 10/10)