Bench Memos

NRO’s home for judicial news and analysis.

Straight Up-Or-Down Vote on Next Supreme Court Nominee


This U.S. News & World Report article on the next Supreme Court vacancy is badly off the mark.  The reporter is apparently so wedded to her preconceived notion that President Bush will have difficulty getting a strong conservative nominee confirmed that she doesn’t think carefully about what she herself is reporting.  (And, Leonard Leo tells me, she quoted only the snippet of his comments that she could use to support her thesis and ignored his repeated point that there are plenty of votes to confirm another outstanding justice.)  


The most significant quotation in the article is from a liberal commentator:  “The issue of filibuster … is off the table, and [Supreme Court] nominees now will go through the regular order:  from Judiciary Committee, to the Senate floor, and to a vote.”  Let’s briefly flesh out the two halves of this quote. 


First:  The justifications for the existence of the filibuster rest on defense of the minority party’s rights.  The filibuster, in other words, is a tool of the minority party.  So far as I can tell, on only one occasion has the filibuster ever been supported by the majority leader in the Senate to try to defeat a judicial nominee (by the Democrats against Edward Carnes’s nomination to the Eleventh Circuit in 1992), and that effort failed as nearly half the Democrats abandoned George Mitchell’s lead.  The partisan use of the filibuster by a majority party against a Supreme Court nominee is unprecedented, and for good reason.  Senate Democrats would look ridiculous, would expose the tremendous rift between the Left of the party and their few moderates, and would demonstrate that they are a party not fit for governing if they were to resort to the filibuster. 


Second:  The long-established practice in the Senate is for Supreme Court nominees to receive a full Senate vote, even if they don’t receive a favorable vote in the Judiciary Committee.  Americans will expect their senators to vote on the nominee, not to delegate a veto to the highly partisan Democrat membership of the Senate Judiciary Committee.


In other words, established practices mean that President Bush’s next Supreme Court nominee will receive a straight up-or-down vote on confirmation on the Senate floor.  As I explained here, the relatively simple task for the White House is to hold all or virtually all the 49 Republican votes and attract the one or more Democrats needed for confirmation.  (It is of course possible that Senate Democrats will try to depart from these established practices.  But if they do so, they can easily be made to pay a very high price.)


The compelling lessons of the Roberts and Alito confirmations are that (1) quality counts—that is, pick a nominee of outstanding ability, and (2) in the battle between judicial restraint and liberal judicial activism, the American people side overwhelmingly with judicial restraint.  If and when the occasion arises, there is therefore every reason for President Bush to nominate another outstanding proponent of judicial restraint and to be confident that that nominee will be confirmed.


Tags: Whelan


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