EDITORIAL - When Sen. John McCain secured the GOP presidential nomination in early March, the conservative wing of the party gulped in tepid resignation. After all, here was a man who, over the course of his political career, had bucked party faithful on nearly every important issue – tax cuts, same-sex marriage, stem-cell research, free speech, gun rights, and immigration included.

But fortunately for McCain, conservatives are strongly united in their opinion that the U.S. Supreme Court has become increasingly bold in its displays of judicial activism. Enter the next president, who will quite possibly appoint replacements for two of the Court’s most liberal justices – John Paul Stevens (age 88) and Ruth Bader Ginsburg (age 75).

Despite their misgivings, conservatives well understand that a McCain appointee would be infinitely more palatable than an Obama or Clinton appointee. McCain sought to drive home this point with a speech on May 6: “For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically.”

He continued: “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. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power.”

The address was widely reported and commended. But one exchange went largely ignored: After his scripted speech, McCain was asked to reconcile his conservative rhetoric with his 1993 confirmation vote for Ruth Bader Ginsburg, a Clinton appointee. McCain responded by noting that “elections have consequences. One of the consequences is [that] the president of the United States gets to name his or her nominees to the bench.” Besides, said McCain, Ginsburg was and is a “qualified” jurist.

McCain makes it sound as though the president has final authority on the Supreme Court appointment process, but such is not the case. Article II, Section 2 of the U.S. Constitution clearly stipulates that 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…” In Federalist #76, Hamilton expounds on the role of the Senate in the appointment process, calling it an “excellent check upon a spirit of favoritism in the President” that “would tend greatly to prevent the appointment of unfit characters…”

McCain is correct in that that president chooses the individuals who endure the confirmation process. But once those individuals are selected, it is the responsibility of the Senate to evaluate and vet them. The Founders would not have included this provision had they intended for the Senate to simply rubber-stamp the president’s nominees. To be sure, McCain cannot explain away his controversial vote by denying the importance of the Senate’s role in the process.

But what, then, about this business of the Senate using its confirmation powers to prevent “unfit characters?” Despite Ginsburg’s seemingly benign appearance, her biography has collected some interesting footnotes. As an attorney for the ACLU, Ginsburg once questioned the right of state and local governments to arrest and prosecute pedophiles. She also provided pro-bono legal services to the North American Man-Boy Love Association (NAMBLA) and co-authored a report recommending that the age of sexual consent be lowered to 12.

Although these startling truths were well-known during Ginsburg’s hearing, the Senate body – and McCain along with it – voted to confirm her. In McCain’s estimation, Ginsburg was not unfit; indeed, she was “qualified.” Such poor judgment compels one to wonder exactly what kind of judges McCain would appoint should he take over for Bush II.

Unfortunately for conservatives, there is no way to gauge McCain’s judicial philosophy with absolute certainty. But of this we can be sure: The man who voted to confirm Ruth Bader Ginsburg will not give us our next Scalia or our next Thomas. And I would venture to say that, despite his recent speech, McCain will not nominate the next Roberts or Alito, either.

Now conservatives must decide if McCain’s lukewarm judicial promise is worth their unconditional support. The jury is still out. But they they had best choose wisely, for the fate of the November contest could rest in their hands.