With Democrats in control of Senate, conservatives say chances are slim for the kind of judicial nominees they want to make it onto the bench during the remainder of President Bush’s second term.
In the afterglow of his party’s victory in taking control of the Senate, the engineer of that take-over, Sen. Charles Schumer, D-N.Y. said this week, “My greatest regret in the last two years is that we didn’t stop (Supreme Court Justice Samuel) Alito…. You don’t filibuster unless someone is way out of the mainstream…. Alito clearly seemed to me to be that.”
Schumer needn’t worry too much about the need to filibuster Bush’s judicial nominees next year.
Since Schumer’s party will be in control of the Judiciary Committee, any right-of-center nominee in the mold of Alito or federal appeals court Judge William Pryor, whom the Senate confirmed in 2005, seems likely to be defeated by the committee, with its ten Democrats and nine Republicans.
The new Democratic members of the panel, senators-elect Sheldon Whitehouse of Rhode Island and Ben Cardin of Maryland seem highly unlikely to vote with the GOP members of the committee.
Democrats to watch
If somehow conservative nominees do make it to the Senate floor for a vote, the key Democrats to watch will be the less liberal Democratic senators who voted for Alito last January: Kent Conrad of North Dakota, Robert Byrd of West Virginia, Ben Nelson of Nebraska, and Tim Johnson of South Dakota. The first three just won re-election; Johnson is up for re-election in 2008.
Outgoing Judiciary Committee chairman Sen. Arlen Specter, R-Pa. addressed the issue Friday in a speech to the right-of-center Federalist Society.
After the crowd gave him a round of welcoming applause, Specter wryly said, “I conclude that most of that applause is for Chief Justice Roberts and Justice Alito.” It was Specter’s skillful leadership that got those nominees on the high court.
He reminded the crowd that Roberts “is sitting there at age 50, with the prospect of decades of service. Justice Stevens in 86. Justice Alito is 55.”
The Roberts and Alito victories “may turn out to be the highlight” of Bush’s presidency, Specter said.
A vacancy on Specter's mind
He added that a vacancy on the Supreme Court is “very much on my mind…. You cannot have an eight-person court, because that would result in lots of 4-to-4 decisions… It’s an eventuality we have to be concerned about.”
As Specter noted, Justice John Paul Stevens, appointed to the high court by President Ford in 1975, is 86 years old.
According to the National Center for Health Statistics, a white male, such as Stevens, who has reached age 85 can expect to live another six years.
In his rulings, Stevens has opposed much of what Bush advocates and so he may well be loathe to see Bush fill his seat.
The next oldest justice is President Clinton’s appointee Ruth Bader Ginsburg, who is 73.
Sen. Patrick Leahy, D-Vermont, who’ll be the chairman of the Judiciary Committee next year, has not made any commitment that Bush’s nominees will get a hearing and a vote from his committee.
Leahy did urge Bush this week to “work with us in charting a new direction… by choosing consensus nominees.”
But if “consensus” means general agreement or accord on a nominee acceptable to Leahy and Schumer, as well as to Specter and the Federalist Society, there’ll be none on staunch conservatives such as Alito.
Bush rankled Leahy this week by re-submitting a slate of nominee including some to whom Democrats vehemently object to.
Appeals court openings
At immediate risk for Bush and conservatives are the 14 vacancies now on the federal appeals courts.
To this point in his presidency, Bush has appointed and seen confirmed by the Senate a total of 254 federal judges, including two Supreme Court justices and 50 appeals court judges.
The appeals court judges are crucial since most legal cases never make it to the Supreme Court and the federal appeals court is usually the final arbiter.
Carter Snead, a Federalist Society member who is a law professor at Notre Dame University and former counsel to Bush’s Council on Bioethics, said, “The entire circus of judicial confirmation politics is reducible to the question of abortion. If it is evident that a nominee is pro-life or opposed to abortion, I think they are not confirmable at this point. If they are opaque or stealthy, I think there will an effort to figure out where they are coming from and they would have a chance to be confirmed.”
“Now with Schumer and Leahy in charge of the Judiciary Committee, abortion is their litmus test and they will certainly on the lower court judges shut down someone like Bill Pryor who said during his confirmation hearing that he opposed abortion personally.”
A Republican member of the Judiciary Committee, Sen. John Cornyn of Texas, took a bit more sanguine view.
“It’ll be much more difficult” to get conservative nominees confirmed, he said this week, “but Sen. Leahy is fond of reminding us of how many judges were confirmed and given an up-or-down vote during his tenure as chairman. I would expect him to be consistent with that practice.”
During Leahy’s stint as chairman form the summer of 2001 until the end of 2002, the panel approved 17 appeals court nominees, two more than the committee has OK’d in the 22 months that Specter has been at the helm.
A new type of nominee?
The reality of a new Democratic controlled Senate, Cornyn said, “may well have an influence on who the nominee is who is chosen by the White House based on how readily they are likely to be considered and confirmed.”
Specter took the longer view of politics in his speech Friday: “There’ll be another election and the voters of South Dakota held Sen. Daschle accountable (in 2004) for his obstructionism. That’s something they (the Democrats) have to keep in mind.”
Daschle lost his re-election bid partly due to his role in blocking Bush judicial nominees in 2002 and 2003.
He added, “If they become obstructionists, they run the risk of paying a price…. We’ve got some cards; we’ve got some aces up our sleeves.”
But one wonders: how engaged is the public in the issue of the people who serve on the appeals courts?
In his answer, Specter reverted again to his concern about the Supreme Court: “The public would care about an eight-person supreme Court. They wouldn’t like that, if there’s political obstinacy, if there’s obstruction.”