Eminent Domain

With today's announcement that the Senate will be going Democratic, I believe that President Bush will be severely hamstringed on judicial nominations. Senator Leahy will be the chairman of the Judiciary Committee. He will set the agenda, the calendar, and the tone of the next two years. Leahy may come across as the kindly but doddering grandfather from the Werther's Original commercials. That is not the case. He's as tough and ideological as Ted Kennedy but without the bombastic style or poor driving record. In light of this power shift in the Senate, I believe that Bush will not be able to get many solid conservatives onto the federal bench, espcially the Court.

This has been a topic of much conversation online today. Recently, a few of us on the web were engaged in our favorite, vulturine past time of Supreme Court vacancy watching. That discussion seems much more interesting post-election, since the playing field has changed significantly. In order to examine this issue fully, I'll be hammering out a series of posts on the topic, examining articles, blog posts, and any demented notions that materialize in my brain. The first article I would like to examine is Ed Whelan's piece in the National Review. Whelan is fairly upbeat, stating that solid judges and Justices can still be confirmed in a Democratic-controlled Senate...

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.

As I read that, my first thought was "well, a lot has changed." Whelan acknowledges that in his next paragraph. The Democratic Party then is not the same as the Democratic Party today. Beyond that, the Thomas confirmation was not without consequences within the Democratic Party. Some of the Democrats who voted for Thomas, like Alan Dixon and David Boren, lost their Senate seats because of it. No one is playing around on this issue. The federal judiciary is high stakes.

Whelan believes that the information age gives the Republicans an advantage...

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.

There is definitely some truth to this. The Internet news sites, blogs, cable news, and interest groups can all provide counterpoints to gross distortions of a nominee's record. There will be a rallying in defense of the nominee, but will that really be enough?

Whelan also discusses the diversity card, which Bush has yet to play (unless you count Miers). Sure, this does provide some support that may have been lacking otherwise. Justice Thomas got a lot of support that a white nominee probably would not have gotten. But again, will that really be enough?

Whelan comments on Democrats who voted for Alito, conservative Democrats, and Democratic Senators facing 08 reelection in fairly conservative states. He believes that there will be sufficient pressure on these folks to vote to confirm. All of these points have merit, but I think that they must be viewed the proper, contemporary perspective. The Democrats have a slim majority in the Senate. There will be a huge amount of party pressure for them to use that power to block another Alito or even a Roberts. I think that overrides the Internet counteroffensive, diversity aspect, and the conservative Democrat aspect. For instance...

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.

My response to that is "hit the music." The Democrats are not going to let the Court go solidly conservative if they have the votes. No way.