Fight Obama’s SCOTUS Pick at the Polls
GOP senators may be tempted, particularly after Democrats’ abuse of the reconciliation process to enact Obamacare, to use procedural tactics to delay or halt confirmation of President Obama’s nominee to succeed Justice Stevens on the Supreme Court. They should resist this temptation.
First, such tactics are bound to fail. With just 41 seats, Republicans stand little chance of slowing down the confirmation process. Even with a majority, Republicans would still be unlikely to succeed in rejecting or causing the withdrawal of a nomination. Neither party has stopped a Supreme Court nomination in the Senate since 1987, when Democrats used character assassination and their Senate majority to halt Judge Bork’s appointment. Democrats came close but ultimately failed using similar tactics against Justice Thomas in 1991. Republicans will have the chance to define their grounds for opposition to the nominee in the Judiciary Committee and in floor debate. When the nomination comes to a floor vote, though, some GOP senators will undoubtedly join Democrats to confirm President Obama’s choice, just as Justices Sotomayor, Breyer and Ginsburg were confirmed with some Republican support.
Second, President Obama’s nominee is unlikely to change the Supreme Court balance in any event. Some prospective nominees may be preferable to others, but on the most contentious issues before the Supreme Court, there is little chance President Obama’s appointee will side with the conservative bloc. It would be almost impossible for President Obama to nominate a jurist likely to compile a voting record more liberal than Justice Stevens did in his 35-year tenure. A known liberal will at least be less frustrating for conservatives than witnessing the journey of liberal self-discovery that has become the hallmark of Justice Stevens and other “moderate” appointees who “grow” on the bench.
Procedural delays such as an attempted filibuster might energize the base but would draw negative public attention as partisanship and a waste of time and resources. There is no justification for Republicans to hand President Obama and congressional Democrats such a gift in a lost cause.
This does not mean, however, that Republicans should simply roll over. Scrutiny of the court decisions, academic writings and judicial philosophy of all President Obama’s judicial nominees is critical to public understanding of how President Obama and Democratic senators wish to reshape the federal judiciary and by extension our economy, culture and society. GOP senators must ensure that such scrutiny takes place. The case for conservative judicial appointments has been and can again be a successful issue for Republicans in congressional and presidential elections. The liberal wing of the federal bench is out of step with what many Americans recognize as common sense on numerous issues such as capital punishment, treatment of detainees in the war on terror, property rights, affirmative action and abortion-on-demand. It is fair game for Republicans to point this out, honestly and without exaggeration, on the campaign trail. Voters must also be reminded that liberal jurists will remain on the bench, and their decisions will be the law of the land, long after the president who nominated them is gone.
Equally important for Republicans is ensuring that opportunities to appoint qualified conservatives to the bench are not squandered. They must insist that GOP presidential candidates make a commitment, if elected, to treat judicial appointments with the utmost diligence and deliberation. Republican presidents have had the unfortunate habit, not shared by Democratic presidents, of appointing judicial ciphers who sometimes turn out to be as reliably liberal as Democratic appointees. Republicans must demand competence too. President Bush was saved from what might have been one of his biggest mistakes when Harriet Miers withdrew her nomination to the Supreme Court. President Bush subsequently appointed Chief Justice Roberts and Justice Alito. Whatever other criticisms conservatives may level at President Bush, his Supreme Court appointees ended up as sterling because his supporters ultimately required it.
Notwithstanding the media narrative that the Supreme Court grew conservative over the last three decades, closer to the truth is that after a long period of liberal justices doing almost anything they wanted, a stalemate ensued. Decisions cheered by conservatives have been offset by a comparable number of liberal judicial victories. Democrats showed with their defamation of Judge Bork and Justice Thomas that they are willing to scorch the earth in the confirmation process to maintain the stalemate or resolve it in their favor. Republicans should not follow the Democrats down the low road, particularly when they are unlikely to succeed anyway. They should let President Obama have an up-or-down vote on his appointment but lay the groundwork for making judicial nominations another argument in favor of voting Republican in 2010 and 2012.