President Bush’s nominee to the Supreme Court to replace Sandra Day O’Connor appeared to be skating on thin ice Wednesday, even though the president hasn’t yet revealed who the nominee is.
In the war of nerves leading up to Bush's announcement of his next high court nominee, Senate Democratic leader Harry Reid and other Democrats were signaling Wednesday that the filibuster — extended debate in order to kill a nomination — is an option they might use.
Referring to chief justice nominee John Roberts, who looks certain to win Judiciary Committee approval on Thursday and confirmation by the full Senate next week, Sen. Joseph Lieberman, D-Conn. said, “I don’t think anybody would call him an extremist, or a divisive or confrontational nominee. But if the next nominee is, I think there’d be a real possibility of a filibuster.”
Lieberman sees filibuster potential
Lieberman said Roberts was “a mainstream nominee. But because of the focus on the balance on the court and Justice O’Connor being a mainstream conservative, if the next nominee is not a mainstream conservative, then a filibuster is definitely possible.”
Lieberman was one of 14 Democratic and Republican senators who signed a May 23 accord in which they pledged to not support a filibuster of a judicial nominee unless there were “extraordinary circumstances” which made it impossible to approve the nominee.
Lieberman said Wednesday that under the terms of that accord, “we reserved the right for each of us to make the determination individually to decide that a nominee was outside of the mainstream, the circumstances were extraordinary, and therefore we would attempt to require 60 votes for confirmation.”
Usually 51 votes are required to win Senate confirmation, but it takes 60 votes to overcome a filibuster.
Another Democrat, Sen. Tim Johnson, D-S.D., said Wednesday that he would vote for Roberts but intended that vote “to be a signal to the president that I’m prepared to cast votes for Republican nominees if they are in the jurisprudential mainstream. There is no need for him to have to go to an extreme candidate….”
Provocative Judge Brown
Praising Roberts, Johnson said, “He has not left a trail of inflammatory, extreme comments behind either on the bench or otherwise.”
This seemed a veiled reference to Janice Rogers Brown, a Bush appeals court nominee whom the Democrats filibustered in 2003, but then finally allowed to be confirmed on June 8.
Brown, who is said to be on the list of potential Bush nominees for the impending O’Connor vacancy, gave a speech prior to becoming a federal judge in which she called Franklin Roosevelt’s New Deal “our own socialist revolution,” a term that rankled some Democratic senators.
Some of her rulings as a California Supreme Court justice were also provocatively phrased: she denounced a San Francisco housing ordinance which exacted a fee from hotel owners by writing, "Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”
One Republican senator and potential 2008 presidential contender, Sen. George Allen of Virginia, scoffed that Reid “doesn't have the votes to filibuster.”
Reid would need 40 other senators to join him to keep a filibuster going.
“The architect of this filibustering of judges, Tom Daschle, is a former Democrat leader,” Allen noted. (Daschle lost his seat to Republican John Thune in last November’s election.) “The people of America think justices ought to have deliberation and examination, with dignity in the process, but ultimately senators ought to get off their cushy seats and vote ‘yes’ or ‘no.’”
Despite Judiciary Committee chairman Arlen Specter's advice to Bush at a Wednesday morning meeting to wait until June before naming an O’Connor successor, Bush’s announcement of the new nominee could come as soon as the Senate finishes its vote on Roberts next week.
A 'sharp stick' in the eye
Hinting at a filibuster, Reid said Tuesday it would be “a real poke in the eye with a sharp stick if they give us (any of) the ten (judicial nominees) we turned down” by filibusters in 2003 and 2004.
Those ten include Brown and another federal appeal court judge, Priscilla Owen.
A Republican senator who serves on the Judiciary Committee, Sen. John Cornyn of Texas, said Reid’s implied filibuster threat “doesn’t sound too ‘implied’ to me. There are some on that (Democratic) side who would like to influence the president’s decision or maybe intimidate the president and affect his choice."
Cornyn added, "My experience has been, working in Texas and now in Washington with President Bush, that he is not going to be intimidated, he’s not going to be influenced. He’ll listen, and if people have reasons on the merits for or against nominees, I’m sure he’s glad to listen, but he’s not going to be deflected in his judgment.”
Sen. Ben Nelson, D-Neb., one of the seven Democrats who signed the May 23 no-filibuster pledge, noted Wednesday, “I voted against Priscilla Owen (as a judge on the appeals court for the Fifth Circuit). I felt and still believe that she was a judicial activist. Having said that, I don’t know that it (an Owen nomination to the high court) triggers a filibuster, but what I can say is she would be a very controversial nominee.”
He added, “another nominee in the likeness of John Roberts – where there’s no question about competence… and very little question about judicial integrity or concern about whether he’d be judicially active on the bench — that’s where we’d like to see it.”
Cornyn sounded a similar theme: “I don’t expect the president to nominate an ideologue. I think he’ll nominate someone as close to a John Roberts as he can find. That doesn’t mean someone won’t call them an ideologue, or try to paint them as extreme or out of the mainstream. That’s part of the game up here. I think most people see through it.”
Senate GOP leaders, unlike Specter, don't want Bush to delay announcing his next nominee.
“There’s no reason to wait,” said Allen. “Justice O’Connor wants to retire, and a man or woman ought to be nominated forthwith and we in the Senate ought to move forthwith.”
“The filibuster threat doesn't change things,” said Ronald Cass, co-chairman of the Committee for Justice which supports Bush’s judicial nominees.
“The President should do exactly what he has said he would: find a nominee who will adhere to the text and history of the Constitution, who will be committed to applying law, not making law," Cass said. "If the Democrats decide to filibuster a nominee who is manifestly qualified for the job — look at John Roberts as an example — the American people will see that they are trying to change the historical practices of the Senate.”