Don't Despair

Published November 9, 2006

National Review Online

The Democrats’ capture of formal control of the Senate is bad news for President Bush’s judicial nominations — especially to the federal courts of appeals — during his final two years in office. But don’t be fooled by Democrats’ bluffing. There’s still plenty of room to get another excellent Supreme Court justice — or even two or three more — confirmed.

Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

Forty-one of 45 Democrats voted against Justice Alito’s nomination. But the four Democrats who voted for him — Byrd, Conrad, Johnson, and Ben Nelson — would be decent bets to vote for the next strong conservative nominee. To be sure, the votes of Byrd, Conrad, and Nelson may have been influenced by the fact that they were up for re-election this year. But since their re-election prospects were never in serious peril, that factor would not seem a major one.

Besides, of course, other Democrats are now looking ahead to re-election in 2008. Along with Johnson (South Dakota), Senators Baucus (Montana), Landrieu (Louisiana), and Pryor (Arkansas) will be running in “red” states in 2008. Especially if they face the prospect of hefty Republican opponents, they won’t be eager to be siding with Teddy Kennedy as he rants against the nominee.

Senator-Elect Casey of Pennsylvania is an eighth Democrat whom the White House could reasonably look to for a “yes” vote on confirmation. Casey might as well dance on the grave of his father (a hero of mine) if he would vote against a nominee who could provide the decisive vote to restore abortion policy to the democratic processes.

In sum, a high-quality conservative nominee with a good public presence — and with the support of the broader conservative coalition that coalesced around Chief Justice Roberts and Justice Alito — should be able to hold all, or virtually all, the 49 Republicans and to pick off the one or more Democrats needed for confirmation. Vice President Cheney’s tiebreaking vote shouldn’t even be needed.

This prospect may well incite Democrats to prevent a straight up-or-down floor vote, by bottling the nomination up in committee or by filibustering it. But either approach is a high-risk tactic that could fuel a powerful backlash as it exposes the extremism of the Democrats. In any event, it would make no sense for President Bush to aim for a nominee who would draw support from the highly partisan Democrats on the Judiciary Committee or attract the 60 votes needed to defeat a filibuster. That path would lead to another Justice Souter. Far better to fight the fight, with a real prospect of victory, than to surrender abjectly.

Quality nominees to the federal courts of appeals will face much tougher odds than a quality Supreme Court nominee, because it’s far easier for Democrats to obstruct these nominees without arousing the public’s attention. It’s worth noting, though, that the situation in the Senate for appellate-court nominees has already been so bad that it can’t get all that much worse. Over the past four years, Senate Democrats have used the extraordinary power that Senate rules and practices confer on the minority party to engage in an unprecedented campaign of obstruction. Senate Republicans, in other words, have never enjoyed actual meaningful control of the Senate on these nominations (or anything else) during that period. The increase in Democratic influence is thus far less than the shift in formal control would suggest.

For district-court nominees, the change in the Senate means relatively little. Nearly all of these nominees are essentially senatorial picks (including, in many cases, picks by Senate Democrats), and the tradition of senatorial courtesy — reinforced by the Democrats’ desire not to appear too obstinate — should keep these nominees moving.

Bottom line: The situation on judicial nominations will obviously get more difficult, but in the event of a Supreme Court vacancy there’s ample reason to believe that President Bush can deepen his mark on presidential history by getting another outstanding justice confirmed. 

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.

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