The Next Supreme Court Vacancy

Published June 21, 2007

National Review

If a Supreme Court vacancy unexpectedly develops this summer, the conventional wisdom is that President Bush will find it extremely difficult or impossible to get a strong proponent of judicial restraint confirmed by the Senate. Now that Senate Democrats are in the majority, the thinking goes, they can easily defeat any judicial conservative, especially if the nominee is replacing one of the five justices who are consistent (Stevens, Souter, Ginsburg, Breyer) or frequent (Kennedy) votes for liberal judicial activism. Look, after all, at how they’re now able to block the President’s lower-court nominees whenever they want to.

This conventional wisdom is unsound. Briefly put: Under long-established Senate practice, every Supreme Court nominee is afforded an up-or-down vote on the Senate floor. A departure from that practice would threaten to impose severe political costs on Senate Democrats. In a competently run confirmation campaign, a strong proponent of judicial restraint will win majority approval in the Senate, with votes to spare.

Now for the extended version:

1. The long-established practice is that the Senate will afford every Supreme Court nominee an up-or-down vote on the Senate floor. Specifically, Supreme Court nominees (unlike lower-court nominees) are referred out of the Judiciary Committee whether or not they receive a favorable vote in committee, and there has never been a partisan filibuster of a Supreme Court nominee. The historical record on these points (which I draw largely from a Congressional Research Service report (updated June 2, 2006), an earlier version of which is available online here) is worth detailing.

Ever since the Senate began routinely referring Supreme Court nominations to the Judiciary Committee in 1835, there has never been an instance in which the Judiciary Committee has killed a nomination by failing to take action on it.[1] Moreover, in each of the ten instances in which the Judiciary Committee reported a nominee unfavorably (six instances) or without recommendation (four instances), the full Senate voted on the nomination — and confirmed six of the ten nominees (including three of the six who had been reported unfavorably). Recent practice is consistent with this tradition. In 1987, the Judiciary Committee unfavorably reported the nomination of Robert Bork, and the Senate proceeded to vote on (and to reject) his nomination. And in 1991, the Committee reported Clarence Thomas’s nomination without recommendation, and the Senate voted to confirm him. In both of these recent instances, the Senate was in Democratic hands.

For the past 130 years — since 1874 — there has only been one instance in which the Senate has failed to proceed to a final floor vote on a Supreme Court nominee reported from the Judiciary Committee. That instance occurred in 1968, when a broadly bipartisan filibuster initiated by a Republican minority prevented cloture on President Johnson’s nomination of Abe Fortas to be Chief Justice. Specifically, at a time when cloture under Senate rules required the votes of two-thirds of senators present, the cloture vote on Fortas’s nomination fell short by 14 votes: 45 for, 43 against. Remarkably, of the 66 Democrats in the Senate, a bare majority — 35 — voted for cloture, 19 voted against, and 12 somehow managed not to be present at the time their leader scheduled the vote. The 19 Democrats voting against cloture accounted for nearly half (over 44%) of the total votes against and for over 65 percent of the votes needed to defeat cloture.

What sort of precedent does the broadly bipartisan filibuster of Fortas provide for efforts to filibuster President Bush’s next nominee? Well, I’ll agree in advance that if there’s ever a realistic prospect that Republicans will account for 44 percent of the votes against cloture or that barely half of them will vote for cloture, then a Democrat-led filibuster would be broadly bipartisan.

2. Why will longstanding Senate practices constrain how Democrats handle the next nominee? Because these practices embody a political reality that Democrats can defy only at considerable political cost.

The practice of having a full Senate vote on Supreme Court nominees who have been reported unfavorably (or without recommendation) from the Judiciary Committee reflects the judgment that the decision not to confirm a Supreme Court nomination is too momentous to be delegated to whatever senators happen to sit on the committee. That judgment applies with particular force now. Democrats won their majority position in the Senate by running unconventional candidates like pro-lifer Bob Casey in Pennsylvania. But the Democrats on the Judiciary Committee tilt heavily to the far left ideological base of the party, and no nominee worthy of a Supreme Court spot has any realistic prospect of winning a single Democratic vote in committee. (When their votes didn’t matter and when they were positioning to defeat the next nominee, three Democrats voted for Chief Justice Roberts in committee; none voted for Alito.) Neither Democrats generally nor the dozen or more individual Democrats presenting themselves to their constituencies as moderates can afford to let the likes of Teddy Kennedy and Chuck Schumer decide the fate of a Supreme Court nominee.

In a sort of reverse political jujitsu, the Democrats’ majority status makes the threat of a filibuster even more extreme. In the context of ordinary legislation, the filibuster is recognized and defended as a tool of the minority. In the words of now-Majority Leader Harry Reid, “The filibuster is a critical tool in keeping the majority in check.” Until 2003, when Democrats unleashed the filibuster against President Bush’s lower-court nominees, the partisan filibuster had never been used even by a minority party against judicial nominees. Now that they are the majority party, Democrats risk looking ridiculous and will exacerbate their internal divisions if they try to sustain an unprecedented partisan filibuster against a Supreme Court nominee.

It is, of course, impossible to forecast just how the politics of obstruction would play out. But a strong proponent of judicial restraint should have the upper hand over Senate Democrats. As the Roberts and Alito confirmation battles showed, the conservative case against liberal judicial activism has strong appeal across a broad swath of the American public. Americans understand that judges should be neutral umpires, not judicial activists. Further, unlike lower-court nominations, which can be buried in obscurity, a Supreme Court nomination will be prominent in the public eye. The public will expect and demand action. (All the more so if the Supreme Court seat is already vacant.) And in the event that the next nominee is a woman or a minority, the nominee will have added political punch.

Ironically, success in filibustering a nominee would probably produce the riskiest situation for Democrats, especially if President Bush steadfastly stood by an appealing nominee. Going into the 2008 election year, Democrats would be foolish to highlight the gulf between the parties, and between their presidential candidates, on the proper role of the Supreme Court.

3. With Vice President Cheney’s potential tie-breaking vote, President Bush’s next nominee will need the votes of 50 senators to be confirmed. The Democrats have the narrowest of margins in the Senate — 51 to 49 — and a quality nominee should hold all or nearly all Republicans. It’s also easy to identify plenty of possible Democratic votes. Start, for example, with the four Democrats who voted for Alito — Byrd (West Virginia), Conrad (North Dakota), Johnson (South Dakota), and Ben Nelson (Nebraska). Look to other Democrats in “red” states, especially those who are running for reelection in 2008 — two, Landrieu (Louisiana) and Pryor (Arkansas), are prime targets. And add in newly elected moderate (or moderate-posing) senators like Casey (Pennsylvania) and Tester (Montana). There’s simply no reason to think that a strong proponent of judicial restraint won’t earn the votes to be confirmed.

To be sure, there will be plenty of timid voices counseling President Bush to go wobbly. A number of Republican senators, for example — including some conservatives — will encourage the hopeless illusion of a consensus pick. Confident that they will win an issueless reelection campaign, they would prefer to avoid the controversy of a contentious confirmation fight, even if that controversy will most likely redound to their benefit. Why, they ask themselves, incur even a small downside risk? Some White House advisers may fear that political capital will be diverted from their own favored priorities, and others may believe that the benchmark of a successful nomination is a quick and quiet confirmation, rather than the appointment of a quality justice.

President Bush’s appointments of Chief Justice Roberts and Justice Alito are perhaps his greatest domestic achievements. If another vacancy develops, President Bush can enrich his legacy with another outstanding appointment or jeopardize it by an inferior selection. The choice will be his, and no one should mistakenly believe that the bare Democratic majority in the Senate prevents him from selecting another strong proponent of judicial restraint.

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

[1] The 1866 nomination of Henry Stanbery was mooted when Congress reduced the size of the Court and abolished the seat to which he had been nominated, and the 1968 nomination of Homer Thornberry to fill Abe Fortas’s seat as Associate Justice was mooted by Fortas’s failure to be confirmed as Chief Justice. There have also been a few instances in which the committee evidently lacked time to act on a nomination submitted very late in a session; in each of those instances, when the nomination was resubmitted in the next session, the committee acted on it.

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