Posted on 11/09/2006 7:46:20 AM PST by SirLinksalot
Don’t Despair
Strong justices can still be confirmed.
By Edward Whelan
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.
no way a strong SCOTUS conservative gets out of a lib Senate judicial committee
That's assuming a strong judge is still nominated. They're already talking about George Mitchell replacing Bolton.
Don't count on Ben Nelson for another vote. He only voted that way before because he was going to be up for re-election soon. Now he does not plan to run again after his newly won 6 years are up, so he can stick it to everyone who thought he was a "moderate" Demoncrat. He does that whenever he can get away with it.
With a Dem Control Congress and the Rino's like Snow, Collin & Hegal
Not a chance in hell will that happen
How about Harriet Miers or Liberman! Hopefully Ruth Buzzi and JP Stevens will hold on for another two years...
Judge Brown of the 9th circuit, a black woman, would be a candidate that the Dems would hate.
Regan got Scalia in, but Bork was Borked. Its not the 80's no breakdancing or parachute pants. Things have changed, We will be lucky to get two decent appeals court judges on in the next two years. Dems will destroy any SCOTUS pick and Bush will have to go the "stealth" route on any nomination.
I think they WOULD Bork Brown. One nominee that I believe would have a better-than-average chance is Justice Diane Sykes, who is from Wisconsin and was suupported for the federal Bench by BOTH Senators from Wisconsin. They BOTH serve on the Judiciary Committee.
I think the political atmosphere has changed since then, all the dims on the Senate Judiciary would be run out of town on a rail by the MoveOn wackos if Janice Rodgers Brown got through.
Ditto for the other Nelson, Bill of Florida.
What is this??
’
If there's another Supreme Court vacancy, Bush WILL DEFINITELY send up some minority or another (woman, black, Latino) since he already got two white guys confirmed. That's a given. It will be interesting to watch the scumbag rats beat up on a few minority nominees, but mostly it will be informative to see if the Republicans have the stones and the brains to look the rats right in the eye and shout "rascist!" to the heavens over and over again for all the world to hear.
Sooner or later the rats and their allies in the scumbag liberal "mainstream" newsrooms will start to squirm. By the time they get to Bush's second or third minority nominee (if it comes to that) their pattern of disdain for qualified minority candidates will be clear even to the mindless chattering class. Let the rats blow out two minority nominees, then bring on Janice Rogers Brown for the trifecta. (I am gleefully wringing my hands at the very thought of it!)
The next Supreme Court vacancy could result in a circus.
Biggest difference: since Thomas, the Dem's sold their souls to keep Clinton in office.
yup..with Arlen Spector as ranking member, ready to fight for conservative judicial nominations...(/snicker)
Rating her conservative rulings history on a scale of 1-100, where would she lie? Most of us dont know her, but I'm always a little leery of judges that Dem senators support.
Another middle of the roader is simply going to be tugged left by the inside the beltway social and media pressure. It's happened before.
I guess you're forgetting that since Clarance Thomas, the RAT scum have been not been allowing full floor votes on conservative nominees.
51 votes to confirm.
60 votes to invoke cloture on debate.
We don't even have 50.
Game over.
I need to brush up on my study notes
Lots of lessons are being taught
--yep--
Sorry but that was then and thisis now. Clarence Thomas would never get out of committee today. His name would never come to the floor for a vote. This is a pipedream.
I agree. Janice Rogers Brown should be the pick.
"Ditto for the other Nelson, Bill of Florida."
He showed his pathological far-left face the past couple of years as he voted against the partial birth abortion ban, wants to allow 20 million immigrants into the USA and also voted against the Patriot act. He's terrible. I voted against him but he won huge here in liberal-infested Florida. He will not vote with the GOP ever again. Now that they have complete power, they'll rule forever.
If, as expected, the next to go are Stevens and Ginsburg, Bush would not even have to replace them and the power of the conservatives is increased.
If the RATS try and hold up a nomination he could also recess appoint them.
Now, the numbers are such that they can defeat any Republican nominee, even moderate ones. Harriet Miers and Alberto Gonzalez would have a tough time now, let alone Brown or someone like that.
Bush's only choice is to recess-appoint any high profile judgeships and hope for a conservative President in '08. But he doesn't have the nuts to be so confrontational, and will more likely appoint squishes that the Dems will accept. We will be stuck with those squishes for 30 years.
I would think she would rank at the very upper end of the scale. She was considered during the selection process that resulted in the nomination of Sam Alito.
Even if they don't and the DIMS shoot down every BUSH nominee, the SCOTUS will have 8 members with 3 solid justices on the court. That is a greater percentage than currently exists today.
Agree, all Bush judges have to have Hillary's and Schummer's approval from now on. Any judicial appointment has to sign the blood oath of pro abortion, etc.
How about this --- JP Stevens retires.
Bush nominates Conservative Judge A, he gets voted down or does not go through an up or down vote.
He remains defiant and nominates Conservative Judge B, same result.
He remains definat and nominates Conservative Judge C, same result.
It goes on and on until 2008. Who will the public think is at fault ?
Will this energize the conservative base come 2008 ?
Here is a little known rule. SC nominees must be sent to the full senate, Committee results notwithstanding. This mean our SCOTUS nominee will at least get to the floor. Our circuit nominees will be hung up for . . ., well, forever.
Harriet Miers aside, President Bush must be commended for his Sup Court picks so far (assuming they turn out as promised, and as most now believe they will). But the barely restrained glee with which he greeted the prospect of now passing his far-left immigration reform sort of makes me wonder if he would betray conservatives on the Court as well.
I just have a hard time believing that Bush would be willing to fight over the Sup Court now.
By going "stealth" do you mean that we'd get another stealth liberal like Souter, or do you mean that Bush would try to get a genuine conservative through in a stealth manner?
Because if its the latter, I am very skeptical. I mean, is there even such a thing as a stealth conservative? Has there been a Sup Court justice in the last 30 years who has proved to be more conservative than initially thought?
If its Emilio Garza, or Edith Jones, or Janice Rodgers Brown, then I'm all for the diversity tactic.
I still don't think it would work, though. I believe that with the next opening potentially giving the Court a real conservative majority the Dems will be willing to risk going over a cliff to stop it from happening. There is no way that radical leftist groups like the ACLU, NARAL, or the People for the American Way will allow their party to take away the one avenue for implementing their kook agenda.
{Emilio Garza & Janice Rodgers Brown}
smearing these great judges is okay by the "objective" media. Various "civil rights" leaders will claim these judges aren't one of us. Thus, racial slurs made against the judges are okay.
Sadly, you're right. That's one reason that 'diversity' picks really don't do any good for the GOP, because the Diversitycrats refuse to given them any credit.
Still, so long as the minority picks are stellar judges who deserve it based on merit, then it might be worth a try. I certainly can't even imagine the Dems allowing another conservative white male to get on the Sup Court.
Don't enable a GOP wimp-out by whining about the strength of the Democrats. Their new numerical strength needs to be tested by vigorous, principled opposition.
Yes, and she is hot!
I mean he will try the latter, and get a conservative that no ones knows. At least someone with out much of a paper trail.
The Harriet Miers ploy was one of the craftiest “bait and switch” con-jobs I ever saw. Absolutely masterful! After Roberts, everybody in the world expected Bush to nominate anybody but another white male - - and he fully met expectations by nominating the unconfirmable Miers.
Miers promptly got pummeled (and I wonder how much the White House contributed to that) and withdrew, thereby opening the door for Bush to, in effect, say, “Hey! I TRIED to replace O’Connor with a woman....”. Now, Bush was in the clear to nominate the Justice he wanted all along - - Sam Alito.
I wonder if Miers was in on this gambit, because if she wasn’t it was a pretty cruel and ruthless thing to do to her. On the other hand, she was in charge of vetting candidates, so maybe she dreamed the scheme up. Nah....
Whatever. Good for Bush. He out-ratted the rats, and America got a better Supreme Court.
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