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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  February 6, 2008
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Topic category:  Other/General

NOT “Gang of 14” Leader John McCain!

NONE of the members of the “Gang of Fourteen” (the Senate clique that preserved the Senate filibuster of judicial nominees in 2005 by joining together and signing a memorandum of understanding on judicial nominations) is fit to be President.

Sadly, Steven G. Calabresi, George C. Dix professor of constitutional law at Northwestern University (and fellow professor John O. McGinnis) endorsed John McCain in an article published in The Wall Street Journal, stating: “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.”

As though The New York Times (which picked McCain as its favorite Republican) would endorse anyone who really would “preserve the ongoing restoration of constitutional government” and McCain’s judicial nominees would be faithful to the Constitution instead of friendly to the interests of the members of McCain’s “Gang” and at least acceptable to the co-sponsors of the legislation and proposed legislation for which McCain is best known: Senators Russ Feingold (McCain-Feingold), Ted Kennedy (McCain-Kennedy), Joseph Lieberman (McCain-Lieberman) and, yes, John Edwards (McCain-Kennedy-Edwards)!

As though, as Laura Ingraham pointed out on her show radio show on February 5, 2008, most of the people now arguing that McCain is more "electable" than the more conservative Romney are not the very ones who argued previously that only Rudy Giuliani was was "electable."

NONE of the members of the “Gang of Fourteen” (the Senate clique that preserved the Senate filibuster of judicial nominees in 2005 by joining together and signing a memorandum of understanding on judicial nominations) is fit to be President.

WendyLong, Judicial Conformation Network General Counsel, statement issued on May 24, 2005: “It is apparent from the rhetoric included in the 'Memorandum of Understanding' that at least 14 Senators - the signers of this compromise - fail to understand the Constitution's 'advice and consent' clause. Article II, Section 2 of the Constitution reads: '[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court .' The Senate's advice and consent role is part of the 'appointment' process, not the 'nomination' process, which the Constitution commits solely to the President."

McCain (who is not a lawyer) doesn't understand the Constitution any better than he understands economics.

Professor Calabresi is entitled to his controversial opinions on the viability of the candidates and weighing perceived practicality and principle in picking a candidate, and even to ignore the fact that McCain has become more liberal in recent years, and taken to lying shamelessly in his pursuit of the presidency.

But Professor Calabresi should notice that McCain has taken to lying shamelessly in his pursuit of the presidency (e.g., misrepresenting Romney's position on Iraq to falsely portray him as a cut-and-run Democrat and lying about saying that Justice Samuel A. Alito, Jr. "wears his conservatism on his sleeve" and he, McCain, would not nominate a person like that) and express disgust with McCain instead of enthusiasm for his election as president.

Also, Professor Calabresi’s attempt in the article to rebut the reality that a leader of the Gang of Fourteen should not be president was as hopeless as it was harsh.

Professor Calabresi:

”Others are concerned that Mr. McCain was a member of the ‘Gang of 14,’ opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

“Conservative complaints about Mr. McCain's role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.”

Matthew J. Franck, professor and chairman of political science at Radford University, in a Bench Memo at National Review Online: “[W]hen Calabresi and McGinnis claim that the Gang of 14 bargain ‘played an important role in ensuring that Samuel Alito faced no Senate filibuster,’ they make a simply insupportable claim, as I think Ramesh [Ponnuru] has pointed out on [National Review Online’s]The Corner."

Wendy Long, Bench Memo, National Review Online, February 5, 2008.

Members of the Gang of Fourteen are not fit to be president, especially McCain.

Witty Peggy Noonan, "Mr. Narcissus Goes to Washington: It's springtime, love is in the air, and 14 Senators are gazing at the mirror," Wall Street Journal, on the Gang of Fourteen:

"You've heard the mindless braying and fruitless arguments, but I'm here to tell you the facts, no matter what brickbats and catcalls may come my way. Lindsey Graham defied the biases of his constituency to do what was right, not what was easy. Robert Byrd put aside personal gain to save our Republic. David Pryor ignored the counsels of hate to stand firm for our hopes and dreams. Mike DeWine protected our way of life. These men are uniters, not dividers.

"How do I know?

"Because they told me. Again and again, and at great length, as they announced The Deal. And I believed them, because I am an idiot. Or as they might put it, your basic 'folk' from 'back home.'

"Listening to them I thought of some of the great and hallowed phrases of our Republic. 'The rooster who thought he brought the dawn.' 'The only man who can strut sitting down.'

"I know they're centrists, but there is nothing moderate about their self-regard. And why should there be? I personally was dazzled by their refusal to bow to the counsels of common sense and proportion, and stirred that they had no fear of justified insult ('blowhard,' 'puffed up popinjay') as they moved forward in the halls of the United States Senate to bravely proclaim their excellence.

"John McCain wryly reminded us not to miss A&E's biography of his heroic Vietnam experience...."

Yes, McCain was a hero during the Vietnam War. So were former Senator Bob Kerry, a Democrat, and the now imprisoned former Congressman Duke Cunningham, a Republican.

NONE of them should live in the White House.

Professor Calabresi, "Minority Rule?," Weekly Standard, May 9, 2005: "It is impossible to exaggerate just how important the upcoming vote on abolishing the filibuster of judges really is. For 214 years of our history, there was not a single filibuster of a judicial nominee who had the support of a majority of the Senate. Before 2003, there was never once a filibuster of a lower court judicial nomination. Today such filibusters have become commonplace, and they will become positively routine if filibuster reform fails to go through. The stakes for conservatives could not be higher."

When "[t]he stakes for conservatives could not be higher," McCain abandoned them to form his "Gang."

William Kristol, "Break the Filibuster: Democrats are looking to the Constitution to preserve the judicial filibuster, he Constitution isn't on their side," Weekly StandardMay 9, 2005: "When the Senate returns from its recess, the majority leader should move to enact a rule change that will break the Democratic filibuster on judicial nominees, confident in doing so that he is accord with historical precedent and constitutional principle."

Charles W. Pickering Sr., "'Nuclear' Isn't the Only Option," Wall Street Journal, May 9, 2005: "Confirming judges by a majority vote is simply following the Constitution. The Constitutional option may be the only appropriate short-term solution if there is another filibuster of a judicial nominee. Stopping the filibuster of judges will not reverse Senate precedent because judges had never been denied confirmation because of a filibuster prior to the past four years. The filibuster as to legislative matters will not be affected."

McCain foolishly opted to preserve an undemocratic Senate rule instead of following the Constitution and historical precedent.

Wendy Long, Bench Memo, National Review Online, February 5, 2008:

"[T]he McCain Gang of 14 was a disaster that snatched defeat from the jaws of victory on judicial nominations.

"In May 2005, Senate Republican leadership had worked for months to make sure they had the votes for the constitutional option. We were ready to put an end to judicial filibusters that liberals had used to kill great nominations.

"And then Senator McCain and his Gang of 14 arrogated the power to their little clique to determine what nominees would make it and what nominees would not, based on a subjective and undefined standard.

"I double checked with someone who was very close to the process inside the Senate at the time, and that source confirmed: 'Senator Frist was ready to execute the constitutional option and McCain stopped it. Period.'"

Say NO to McCain and YES to Mitt!

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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