(Senate ) Compromise could hurt Democrats in battle over Supreme Court

Kansas City Star ^ | Sat, May. 28, 2005 | DICK POLMAN Knight Ridder Newspapers

[Ernest_at_the_Beach]

PHILADELPHIA - (KRT) - This summer, Washington may well vie with Hollywood for the biggest blockbuster. The mother of all political battles, over the future of the U.S. Supreme Court, is drawing near.

With Chief Justice William H. Rehnquist seriously ill - in fact, with eight of the nine justices over age 65 - the odds are high that at least one job will open for the first time in 11 years. And that will unleash passions on the left and right, in the first confirmation showdown of the Internet era, with blogs and Web sites stoking the ideological warfare 24/7.

Anyone tapped by President Bush to fill a vacancy will be forced into the maelstrom. Nevertheless, Bush seems poised to get what he wants - to accentuate the court's rightward tilt, potentially to reshape the bench as no president has done since Franklin D. Roosevelt.

That's the bottom line, despite a Senate deal last week that seemed - at first glance, anyway - to be a victory for the chamber's Democratic minority.

Under the deal, Democrats can still stage filibusters against Bush nominees - a parliamentary tactic that allows the president's foes to kill his nominees with endless debate, unless 60 of the 100 senators agree to shut it down. Religious-right leaders are apoplectic; they say the 44 Democrats have retained the power to block the kinds of conservatives who would revolutionize the high court.

Tony Perkins said that, when he heard about the deal, "I wanted to cry." Gary Bauer said, "I felt I'd been punched in the stomach." James Dobson said, "I went to bed and pulled the covers up over my ears."

But these Bush allies - who fervently seek a high court that will end legal abortion and lower the wall between church and state - may be needlessly alarmed. Legal scholars and political analysts argue that the deal is not so great for the Democrats, and that it will hardly deter a president who is loath to compromise on his signature quest to reshape the court.

"The bottom line is, Bush still has the upper hand," said analyst Alan Abramowitz, a court-watcher at Emory University in Atlanta. "His general attitude is, `Go for broke.' He's not going to pull back and nominate a moderate to replace Rehnquist. I think he would actually enjoy a big fight with the Democrats.

"Remember, he still has 55 Senate Republicans who can change the Senate rules and end filibusters entirely," by detonating the so-called nuclear option. "They can and they will."

Also, the Democrats may have boxed themselves in. Last week, in exchange for agreeing to stop filibustering three lower-court Bush nominees whom they had tagged as extremists, Democrats promised they'd use the tactic only in "extraordinary circumstances." That phrase could haunt them down the road, because it arguably sets the bar higher than it was before.

Many analysts are asking: How can Democrats credibly invoke "extraordinary circumstances" against a conservative nominee for the Supreme Court - after having just agreed to stop filibustering an appeals-court nominee (Janice Rogers Brown) who once assailed FDR's New Deal as a "socialist revolution," and after having agreed to stop blocking another nominee (William Pryor) who believes that the 1973 Roe v. Wade abortion ruling was an "abomination"?

It would appear that the Democrats, by lifting blockades against Brown and Pryor, can no longer reasonably cite a nominee's conservative ideology as grounds for a filibuster. Some Senate Republicans are already making this argument (and threatening the nuclear option if Democrats invoke ideology), but a number of Democratic-friendly commentators also are saying that the Democrats have been effectively squeezed.

Witness T.A. Frank, in a blog sponsored by the New Republic. He said that, under the deal, "only the certifiably insane can possibly be blocked." The bottom line: "If (Bush) nominates, say, an Irish setter who runs up and bites (GOP Sen.) Orrin Hatch in the leg, then Democrats will be allowed to play the bad guys and employ their filibuster. Otherwise, they'd better hold off, since, if they don't, Republicans might have to take the filibuster away for real."

But if all this is true, why are the religious-right leaders so upset about the Senate deal?

"Some of the anger is genuine, but knowing them as well as I do, some of it is staged," said Marshall Wittmann, a former lobbyist for the Christian Coalition. "They are staging a tantrum in order to tell the White House, `We're giving you a taste of what our wrath will be if you betray us by choosing a high-court nominee who isn't our kind of conservative.'"

The religious right - which, according to Wittmann, now constitutes 40 percent of the GOP coalition - has been unhappy with the Rehnquist court, despite the fact that seven of the nine justices are Republican appointees. Among other things, this court has repeatedly declined to overturn Roe; ruled that juvenile criminals may not be executed; decreed that the private sexual conduct of gays should not be criminalized; and has refused to hear numerous cases seeking to breach the church-state barrier.

Bush is sensitive to Christian conservative concerns. Geoffrey Stone, a law professor at the University of Chicago, said: "Bush probably believes it is in his political interest to satisfy his base by stuffing a conservative nominee down the Democrats' throats, basically telling Democrats, `I appoint, now you play dead.' Force them into a filibuster, depict it as an unfair obstruction, then break it."

Stone also said Bush could outfox Democrats by choosing "responsible and thoughtful" conservatives who would test the Democrats' willingness to filibuster. He cited federal appeals judge Michael McConnell, who has long denounced abortion-rights rulings but whose intellect has been praised by liberal academics.

Another rumored front-runner is federal appeals judge J. Michael Luttig, who in 1998 ruled against late-term abortions, and, a year earlier, ruled that teens seeking abortions had to tell their parents first. It's no wonder that Eleanor Smeal, president of the Feminist Majority Foundation, is already insisting that threats to "women's rights" should be considered an "extraordinary circumstance."

But Mark Tushnet, a Georgetown University law professor and former Supreme Court clerk, said: "Abortion alone is not enough of a reason for the Democrats to filibuster. They lost the November election. Therefore, they shouldn't expect to get a `pro-choice' person on the Supreme Court. Their interest groups know that, but they have to keep raising money."

That's smart, considering that the expected Rehnquist vacancy is merely the opening round. The court's philosophical makeup won't be greatly altered if a new conservative takes Rehnquist's slot. The real fight may occur if or when Bush nominates someone to replace John Paul Stevens (age 85, a moderate), or Sandra Day O'Connor (age 75, a swing vote).

Wittmann said, "If Bush was to choose someone truly controversial as an O'Connor replacement - like maybe the equivalent of (stymied U.N. nominee) John Bolton - that's when the Democrats will claim `extraordinary circumstance.' Everyone in Washington knows it."

Yet, amidst all the three-dimensional chess, the irony is that nobody knows how justices will perform until they don the robes. Republican President Dwight Eisenhower named Earl Warren and William Brennan, who helped tilt the court leftward for a generation. President Bush is generally loath to admit error, but Eisenhower, when asked whether he had ever made mistakes, famously replied, "Yes, two. And they're on the Supreme Court."

For that reason alone, Bush's conservative followers dearly hope he will leave no room for compromise.

[deport]

Why do you feel that Justice Scalia will be the nominee for Chief Justice? History tells us that only three of the 16 Chief Justices have been elevated to that position from the Associate Justice position. President Bush can be predictable but he can also be unpredictable. I don't think he'll select an existing Associate Justice for that position but rather select someone from off the court and have only one battle. jmo.

[Dog Gone]

The screaming and whining over this agreement at this forum was, and maybe still is, an overreaction.

I'll never vote Republican again, dammit!

Gimme a break.

At worst, the agreement postponed the nuclear option and we finally got a filibustered judge approved. More to come.

John Paul Stevens will have to drop dead before he retires under a Republican administration, but his vacancy will probably the first that is really a battle.

Bush will do well to replace Rehnquist with someone as conservative as him and I don't expect the Rats to make much fuss about it. They can pat themselves on the back for showing how bi-partisan they are how they respect the comity of the Senate.

[Clintonfatigued]

For one thing, Bush has mentioned Scalia as being the kind of judge he would appoint in the case of a vacancy. In addition, Scalia has indicated an interest, and there are rumors that he'd retire if someone else were nominated to succeed Rehnquest.

Another factor is that, in spite of their vastly different views, Scalia is personally frieldly with Ruth Ginsburg and Stephen Breyer. Maybe Bush figures he could influence them on a few key votes, though it hasn't happened so far.

[Waco]

Nope, no way, the "compromise" is gone forgotten in the blink of an eye. Watch, if I'm right. The RATS are but a hairs breadth above communists.

[deport]

Thanks...... I see those things but see them as the exact reasons as why President Bush won't select Scalia. The obvious is often not the course with President Bush or that is my observations. Again thanks for sharing your reasoning.

[GoBucks2002]

These dems that came away from that little "compromise" charade thinking that President Bush is going to "ask the dems" who he should nominate, are really stupid!

Actually, they have history on their side. Republican majorities have always let Democrats call the shots anyway. The Republican Senate was almost useless to Reagan. The Republican House and Senate let Clinton do whatever he wanted legislatively (and let him take credit for the rare occasions he adopted their ideas).

[Txsleuth]

Speaking of liberals---you can see an idiot liberal right now on C-span---

REp. Conyers is having a hearing about "Fairness in Media" with Al Franken and a bunch of his left-wing pals as witnesses....Franken is on right now....Blech!

[Ernest_at_the_Beach]

So how is Ginsberg's health anyway?

I thought at one time she might be the first to give up her seat because of health problems.

[Ernest_at_the_Beach]

Another analysis:

Nuclear Judicial Showdowns Hinge On Extraordinary Circumstances

************************************

»  

Nuclear Judicial Showdowns Hinge On Extraordinary Circumstances

Senate Judicial

Author: Steve Sabludowsky  |  5/24/2005

Extraordinary circumstance is the “Buzzword”.  The ad-hoc committee of 14 Senators who came together to avert the “judicial nuclear” solution have for now turned down the volume and stepped from the brink as suggested on ABC’s Nightline Monday night.  But, in reality with President of the Senate Bill Frist threatening the use of the nuclear option at any time, with members of the extreme right and left expressing great displeasure with the settlement and with political realities changing all the time, what these Senators might have done is just save time, for now.

 

Obviously, the future brinkmanship hinges upon amorphous vagaries of “extraordinary circumstances”.  But the agreement is designed that given the political makeup of the Senate, these same senators would bind together on future judicial nominations to protect the rights of the minorities and at the same time provide President Bush with the right to name justices of his liking.  But, ever so fragile is the agreement and the definition. 

 

With Supreme Court Justice William Renquist expected to step down from the Supreme Court, with abortion, right to life, right to choose being the litmus test for so many, with Senate leaders and advocacy groups willing to cast aside all civility so their sides win, the committee of 14 might define “extraordinary circumstances” totally different when the political circumstances and pressures change.

 

One of the 14 Senators who signed the agreement was Senator Mary Landrieu (D- Louisiana) who appeared on Nightline along with two other signatories and who said in writing, ““I am so proud we were able to reach an agreement that truly reflects the best traditions of the Senate,” Sen. Landrieu said. “Had the Republican leadership launched this ‘nuclear option’ tomorrow, I fear we would have reached a point of no return.  That would have been a sad day indeed.

 

“But now, we have an opportunity for pause, a moment for hope and a chance to return to the finest traditions of our body, avoiding the rancor that has become so commonplace in recent years.  This agreement helps protect these cherished traditions by ensuring that the minority – and even a lone individual – will continue to have the right to speak up and be heard.”

 

That lone individual might one day be President Bush who try to test the waters once again by nominating a judge or Supreme Court justice that might meet or fail the “extraordinary circumstance” appreciations of some of the same 14 Senators.  Then, again due to the extraordinary efforts of 14 leaders, President Bush might realize that the country does not want to be on the brink and wants a rest from these constitutional showdowns.  We’ll just have to wait and see. 

 

For now, while some nominees might have been perfectly acceptable and might have made wonderful judges, 14 Senators exercised some courage and created a coalition, the likes we might not see in quite a while.

Complete Text of Signed Senate Agreement On Bush Judicial Nomination - Filibuster Busted?

Discuss this issue of the judicial compromise on our Buzzboards

Newsweek’s Koran Damage Control Flushed - Magazine Placing Blame Elsewhere

[nwrep]

Republican President Dwight Eisenhower named Earl Warren and William Brennan, who helped tilt the court leftward for a generation

For all the hoopla about being a Republican, Ike was a social liberal. In fact, it wasn't a given that he would run as an "R". Plus, at that time, the Republican party, as it was dominated by the striped-pant, Rockefeller bunch, was the liberal party. Don't forget that JFK's SC appointment (White) was one of the most conservative justices on the bench for a generation, and dissented in Roe v Wade.

So in those days, when the Republicans appointed a judge, there was no guarantee they were looking for someone conservative.

[Ernest_at_the_Beach]

More on the Filibuster ....and MOU.

[Txsleuth]

I love the way Landrieu said that the agreement means that the minority will have the "right to be heard"---like we don't "hear" them all day and night on the MSM...?

Like their bitchin and moanin isn't heard on the Senate floor every single day?

Dang, Frist offered 100 hours per nominee---Owens debate was over 4 1-2 days of Senate time and was still less than 50 hours....and we all know how tiresome THAT became...

They have anemic arguements and yet they get their way, WAY to often...

[Dog Gone]

I thought at one time she might be the first to give up her seat because of health problems.

She's apparently beaten colon cancer, but she doesn't look too good to me. Helen Thomas doesn't either, but she seems to live just to torment me.

[Ernest_at_the_Beach]

ROFL!

Helen is exceptional in so many ways......

[Republican Wildcat]

John Paul Stevens a moderate? LOL.

[Zack Nguyen]

But these Bush allies - who fervently seek a high court that will end legal abortion and lower the wall between church and state...

WRONG! I get so tired of these "objective" media members! No Christian conservative wants to bring the church into the government. We want Christian ethics in government. How often does it need to be said that there is a difference? Are these reporters ignorant, or is this done on purpose?

[Ernest_at_the_Beach]

I say, on purpose!

[edsheppa]

It would appear that the Democrats, by lifting blockades against Brown and Pryor, can no longer reasonably cite a nominee's conservative ideology as grounds for a filibuster.

How convenient periodic memory loss is to the Old Media. Only a few short years ago the Democratic mantra was "no political litmus test" for judges. I guess that stance is "no longer operative."

[Yosemitest]

Damned right, "some of the anger is genuine."

NOT ONE PENNY!!!

I'm angry enough to pledge money to real conservatives who will run against these RINO's and replace them. How about $100.00 a head?

I encourage everyone to attack!

Lincoln D. Chafee of Rhode Island
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