Post-Alito: Some Thoughts
Today, I've been trying to think about the various angles of judicial appointments, post-Alito. Looking at the totality of the Supreme Court nominations under President Bush, I think that there is one very important result. The era of the stealth nominee is over. Miers went down in flames. Roberts and Alito were both confirmed. Qualifications matter. If President Bush gets another vacancy on the Court, he can nominate a highly qualified jurist and win confirmation. Alito had a judicial record that was a mile long. Both he and Roberts made statements critical of Roe. Both were Reaganites. These weren't Souters. These were established, qualified, credentialed judges with strong conservative histories. They are both Supreme Court Justices now too.
It's going to be interesting to see if the "cry wolf" effect that I've talked about really has legs. Has the rhetoric of Ted Kennedy, PFAW, and the like become nothing but background noise? I think so. The era of Borking is over. There are too many Republican Senators who understand the stakes of the fight and too many conservative groups/websites ready to respond to every attack on a nominee. The "Samuel Alito's America" routine didn't work. I don't think that a "Michael McConnell's America", a "Michael Luttig's America", or a "Karen Williams' America" speech will have any effect either. The nominee's qualifications and performance at the hearing matter a hell of a lot more than the rhetoric of the Left.
Let's assume that there are no more vacancies during the Bush presidency. The older Justices may try to hang on as long as possible (which I think is actuarially unlikely). If that happens, then the 2008 presidential election has become incredibly important for both parties. I know, it's important as is, but the next election will decide the shift of the Court for the next decade at least. Even if the rest of the Justices hang on for three more years, they won't last through 2012. The Democrats need to win the election to maintain the number of liberal votes. The Republicans need to win it to finally shift the Court conservative (not a sometimes 5 vote majority, but a solid voting group). That's the other lesson from this: elections matter.
It's going to be interesting to see if the "cry wolf" effect that I've talked about really has legs. Has the rhetoric of Ted Kennedy, PFAW, and the like become nothing but background noise? I think so. The era of Borking is over. There are too many Republican Senators who understand the stakes of the fight and too many conservative groups/websites ready to respond to every attack on a nominee. The "Samuel Alito's America" routine didn't work. I don't think that a "Michael McConnell's America", a "Michael Luttig's America", or a "Karen Williams' America" speech will have any effect either. The nominee's qualifications and performance at the hearing matter a hell of a lot more than the rhetoric of the Left.
Let's assume that there are no more vacancies during the Bush presidency. The older Justices may try to hang on as long as possible (which I think is actuarially unlikely). If that happens, then the 2008 presidential election has become incredibly important for both parties. I know, it's important as is, but the next election will decide the shift of the Court for the next decade at least. Even if the rest of the Justices hang on for three more years, they won't last through 2012. The Democrats need to win the election to maintain the number of liberal votes. The Republicans need to win it to finally shift the Court conservative (not a sometimes 5 vote majority, but a solid voting group). That's the other lesson from this: elections matter.
