BY JAMES TARANTO
Tuesday, July 5, 2005 2:36 p.m. EDT
Dems: Please Don't Make Us Fight!
"AMERICA deserves a Supreme Court Justice who receives UNANIMOUS SUPPORT!" shouts the Web site UniteOurStates.com, an effort "born out of Senator Joe Biden's conviction that to make the 21st century an American century we must overcome the politics of division that have burdened our country in recent years."
Biden, of course, is the Delaware Democrat who, as chairman of the Judiciary Committee in 1987, led the effort to bork Judge Robert Bork, though the previous year he had told the Philadelphia Inquirer, "Say the administration sends up Bork and, after our investigation, he looks a lot like another Scalia. I'd have to vote for him, and if the groups tear me apart, that's the medicine I'll have to take. I'm not Teddy Kennedy."
In any case, unanimous approval is an unrealistic expectation in this day and age, and this standard would disqualify five sitting Supreme Court justices: Chief Justice William Rehniqust (confirmed over 33 "no" votes) and Associate Justices David Souter (9), Clarence Thomas (48), Ruth Bader Ginsburg (3) and Stephen Breyer (9). Not since Anthony Kennedy in 1988 has a high court nominee been confirmed unanimously.
No matter, the Democrats have embraced the idea that President Bush should choose someone they can support. "I proposed a summit where the president calls a wide range of senators and we roll up our sleeves, let down our tie and discuss things all day long," Sen. Chuck Schumer of New York said Sunday on ABC's "This Week With George Stephanopoulos" (no transcript online). "Now, would that help? Who knows? But you know, like my grandmother said when I had a cold and she said take chicken soup, it can't hurt."
Ted Kennedy, who Biden was not until 1987, echoes the theme in a Washington Post op-ed:
Sandra Day O'Connor's retirement gives President Bush, elected by a divided nation that has become even more divided, a unique opportunity to unite us by choosing for the Supreme Court someone who can win support from a broad bipartisan majority in the Senate and whom the vast majority of Americans will be proud of.
Kennedy himself has not exactly been a model of consistency in his approach to Supreme Court confirmations. When O'Connor was appointed in 1981, as blogger Jon Henke notes, Kennedy declared:
"It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the new right have no place in these hearings and no place in the nation's democracy."
But National Review Online's Ed Whelen recalls that Kennedy, in explaining his vote against a later Republican nominee, declared that he "had not demonstrated 'a sufficient commitment to the core constitutional values at the heart of our democracy' " and that his responses to questions about Roe v. Wade were "alarming." That nominee was David Souter.
It seems unlikely that the president will heed Democratic calls to choose someone who'll make them happy. The most "moderate" of the prospective justices who've been discussed thus far is Attorney General Alberto Gonzales, against whose nomination to his current post 36 Democrats (including Jeffords) voted. And, as the New York Times reported on Saturday, the prospect of a Gonzales appointment has already set off a "groundswell of opposition" from conservative groups.
The Dems are making this impossible demand partly for tactical reasons, of course. They want to seem reasonable now, in hope that later they can say: We had to fight. The president chose an extremist!
Yet there may be more to it than this. Consider a pair of comments from Judiciary Committee Democrats on the Sunday news shows. Sen. Pat Leahy of Vermont told "Meet the Press" guest hostess Andrea Mitchell, "I would urge that the groups on both the right and the left calm down a little bit. Let's see who the nominee is and trust the Judiciary Committee to do a good hearing."
And Sen. Dianne Feinstein of California said on "Fox News Sunday" (no transcript online), "One of the things that bothers me is . . . the groups all mobilize, the money all raised, the expectation of spots back and forth--I think that is destructive, candidly, to the process. And this Judiciary Committee is pretty solid."
Why would Democratic senators go out of their way to distance themselves from the "groups" whose bidding they've eagerly done in the past? Perhaps because they realize that this time they cannot deliver. For all the nervousness on the right, the GOP is in an extremely strong position. This will be the first time since 1986 that a Republican Supreme Court nominee will face a Republican Senate, and the 55-seat majority is more than during any GOP presidency since Hoover's. And unlike in 1987 (Bork) and 1991 (Thomas), this time there are well-funded interest groups on the right as well as the left.
True, the Democrats may be willing to use the filibuster, a weapon they didn't deploy in previous Supreme Court battles. But seven senators are now on record as pledging to abjure this tactic except in "extraordinary circumstances," and, as we noted last month, at least five who were not parties to the compromise seem to have a disinclination to filibuster.
The compromise is not an airtight guarantee against a Supreme Court filibuster, but it does create a counterpressure to party loyalty for the seven compromising Democrats--and it may stiffen the spine of those who, whether for reasons of politics or principle, don't want to filibuster. There's a decent chance that the fight over Justice O'Connor's replacement won't live up to its billing. |
