Bench Memos

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Five Reasons To Be Happy About Judicial Prospects


We don’t know yet — and may not know for some time — whether the Senate will be red or blue for the next two years.

But Ed is exactly right that even if the Senate goes Democrat, President Bush will still be well positioned for the Senate to confirm an outstanding judicial conservative should he have another Supreme Court nomination to make in the next two years. There are a few reasons why this is so:

One, Justice Thomas was confirmed, 52-48, in 1991, when there were 57 Democrats and 43 Republicans in the Senate. The Judiciary Committee voted him out on a partisan 7-7 split. The liberal special interest groups made sure there was lots of cover for Democrats to vote against him. But he was confirmed, with 11 Democrats voting in favor of him.

Two, regrettably, the issue of the courts and liberal judicial activism was not made the focus of these midterm elections. If the issue had been a centerpiece of tough campaigns, the result might have been different, because the vast majority of Americans believe strongly that our courts, especially the Supreme Court, must return to the limited role in our society that the Constitution prescribes. We didn’t capitalize on it in the campaigns, but the enthusiasm and deep commitment to the issue is still out there.

Three, if the Democrats are foolish enough to try to filibuster outstanding judicial conservative nominees, they can go on record opposing cloture and being obstructionists. There is no filibuster-proof nominee who is worth his or her salt. But it’s up to the Democrats how far they want to block and obstruct the nomination process and good people. If they do, they will surely pay in 2008.

Four, the Democrats who won in this election ran as moderates. Their conduct on judges will be a perfect test of whether they were being honest with the American people. Chuck Schumer seems confident they will join the liberal left filibuster wing of the Democrat party. He thinks they are in his pocket. Maybe so. Or maybe these self-styled moderates will remember how they got to the Senate and will stand up to the liberal left.

Five, Ted Kennedy and his pals can no longer argue that Republicans are “controlling all three branches of the federal government” as a reason why President Bush’s nominees should not be confirmed. If Democrats control Congress, all the more reason to confirm those solid judicial conservatives to the Court.


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