The Democrats' Mid-Term Triumph: What Will It Mean for the Courts?

The impact of the Democrats' mid-term election triumph will be great. But perhaps not as great as liberals hope and conservatives fear. Here are quick thoughts on the impact of the Democrats’ mid-term election triumph on the Bush administration’s priority aim of shifting the federal judiciary far to the right.  Certainly, the impact will be great.  But perhaps not as great as liberals hope and conservatives fear.

Control of the Judiciary Committee and Senate floor agendas will drastically affect the confirmability of Bush nominees to the lower federal courts, especially the courts of appeal.  Judiciary Committee Chair Patrick Leahy will have considerable discretion to drag out consideration of nominees disapproved by Democratic constituencies and leaders – interminably and, often, terminally.  During President Clinton’s first term, Republican Judiciary Chair Orrin Hatch told Clinton to send him “moderates,” warning that he would block “liberals.”  A decade later, Leahy vainly urged George W. Bush to use a similar recipe during the first six years of the latter’s White House tenure – pledging not to obstruct confirmation of “moderates” or “mainstream conservatives,” as opposed to “right-wing ideologues” or “activists.”  Now, re-elevated to Committee Chair, Leahy might be disposed to reinvigorate his offer.  However, many Democratic liberals could press to maximize delay for all Bush nominees, whether “conservative,” “moderate,” or “extreme.”  The liberals would have recent history on their side.  In the late 1990s, Judiciary Committee Republicans stonewalled President Clinton’s nominees of all stripes; even the most impeccably credentialed candidates, such as eminent D.C. practitioner Allen Snyder and subsequent Harvard Law School dean Elena Kagan, were bottled up in the Committee.  During Clinton’s last two years, Republicans granted Judiciary Committee hearings to only 47% of Clinton’s appellate nominees (compared to 74% in 1995-96 and 79% in 1997-98), and blocked 56 percent of them, leaving 60 vacancies for a new Republican administration to fill. 

In any event, however moderate or “mainstream” nominees are treated by Leahy and his colleagues, radical conservatives, truly compliant with Bush’s commitment to model his nominees after Supreme Court justices Antonin Scalia and Clarence Thomas, will have little chance of securing confirmation before election day 2008.  (Even so, Bush and political advisor Karl Rove may continue to send up provocative nominations, to stoke the ire of their social conservative “base,” and give Democrats from red states politically difficult votes to cast.)

But Supreme Court nominations will present a bigger challenge for the Democrats.  Should a vacancy occur in 2008, close in time to the Presidential election, Democrats may be able to obstruct, delay, bottle up, and perhaps filibuster a Supreme Court nominee.  There is a relevant precedent: in 1968, Republicans successfully filibustered lame-duck President Lyndon Johnson’s effort, before leaving office, to promote Associate Justice Abe Fortas to Chief Justice and his good friend Fifth Circuit Judge Homer Throneberry to Associate Justice.

But if a Supreme Court vacancy were to occur during or at the end of the current Supreme Court term, in 2007, blocking a Bush nominee would be trickier.  Assuming that President Bush were to nominate a candidate who, like Justices Alito and Roberts, was ideologically satisfactory to his right-wing base but professionally and ethically unassailable, Democrats could not indefinitely hold such a nomination up in committee. Neither Leahy nor Reid would be likely to antagonize moderate opinion by attempting to visibly obstruct a nominee of this genre.  On the other hand, it is possible – based on Democrats’ reaction to Alito’s candidacy in 2005 – that a Senate majority could be marshaled to reject a similar candidacy in an up-or-down vote on the Senate floor.  In 2005, 41 of 45 Democrats (plus liberal Republican Lincoln Chafee) voted no on Alito’s confirmation.  That total included 9 of 13 Democratic senators representing red states (states which Bush carried in 2000 and 2004); three of the four who voted to confirm Alito faced re-election contests in 2006, the fourth in 2008.  Conceivably, virtually all Democrats and perhaps two or three Republicans could vote no on a professionally punctilious though ideologically extreme nominee, enough to add up to a 51 vote majority.  However, while such a result is conceivable, it seems highly unlikely: red state Democrats, who first won their seats by narrow margins – such as Jon Tester in Montana, Claire McCaskill in Missouri, or Jim Webb in Virginia, in 2006, or Tim Johnson in South Dakota, in 2002 or Ben Nelson in Nebraska, in 2000 – would see such a no vote as extremely risky.    

If it will be difficult to vote down an Alito-like Supreme Court nominee in 2007, it will be even more difficult to keep such a nomination from coming to a vote by a filibuster.  In January 2006, Senators Kerry and Kennedy mounted a filibuster against Alito’s candidacy; when Republican Majority Leader Bill Frist moved to terminate debate, his cloture motion prevailed easily, 72-25.  Fifteen Democrats voted against sustaining the filibuster, including all Democrats representing red states.  Only a nominee who – like Robert Bork in 1987 – projects a broadly negative personal impression with the public is likely to be the target of a successful filibuster.  But then, if the nominee appears that distasteful, he or she could just as easily lose on confirmation – as did Bork himself.