Bench marks: sizing up McCain on judges.(John McCain)

TED OLSON has spent much time in the last year reassuring nervous Republicans. The conservative legal star, former solicitor general, and champion of Bush v. Gore headed up Rudy Giuliani's legal-advisory team in the early primaries. Now Olson is backing John McCain, and, just as with Giuliani, he has had to address the concerns of conservatives who worry that the candidate isn't very strong on judges.

"There's a residual level of distrust out there because of things like McCain-Feingold and the Gang of 14," Olson told NATIONAL REVIEW. "I've told them that John McCain, in my opinion, is a man of his word. I said to him, 'The one question conservatives are going to ask is whether you're going to be solid on judicial appointments.' He gave his word to me, and we talked about it at some length." Olson has been able to ease many a troubled conservative mind, but there remain some loyal members of the Republican base who just don't trust McCain when it comes to one of their most important issues.

On McCain-Feingold, critics such as George Will have suggested McCain would be loath to nominate anyone who might vote to strike down his signature campaign-finance-reform law. Olson has written briefs in opposition to the law but as solicitor general defended its constitutionality. He does not believe McCain would press the campaign-finance issue with potential nominees. "I am convinced he will appoint judges without asking them how they feel about McCain-Feingold," Olson says. But McCain has also pledged to nominate judges from the school of John Roberts and Samuel Alito. Doesn't he know that judges in that tradition would likely believe McCain Feingold is unconstitutional? "He will appoint judges and justices who are in that mold," Olson says.

On the Gang of 14, McCain's defenders point out that the deal forced Democrats to back down on some filibustered nominees--William Pryor, Priscilla Owen, and Janice Rogers Brown, among others--whom they had sworn never to let through the Senate. The Gang also helped pave the way for the successful confirmations of Roberts and Alito. And while it frustrated Republicans who wanted to put an end to the Democrats' unprecedented use of the filibuster to stop an entire slate of judicial nominations, it also left the filibuster option open--a result many in the GOP didn't like at the time, but one they might view more favorably should they face a President Obama and 56 or 57 Democrats in the Senate.

Even if conservatives overlook McCain-Feingold, and even if they believe the Gang of 14 did more good than harm, there is still a fundamental problem with McCain and judicial nominations: He doesn't seem to care all that much about the issue. McCain won the Republican nomination on the strength of his national-security experience and has spent most of his time as a senator working on the Armed Services and Commerce Committees. Although he hasn't been on the wrong side of any big judicial-confirmation fights, he hasn't been out front on the right side, either.

Just look at McCain's role in the selection of federal judges in his home state of Arizona. While appellate-court nominations often attract a lot of attention, the lower district-court nominations are usually the work of home-state senators, who suggest names to the White House, which vets them and sends them to the Senate. Even though McCain is the senior senator from ...