First, Senate liberals are obviously trying to resuscitate the judicial filibuster with this demand. If the president does not choose to consult or does not choose to give the minority a total veto, look for them to claim it as an “extraordinary circumstance.”
Second, I don’t think consultation is a bad thing per se. If Patrick Leahy (D., Vt.) were as amiable and genuinely non-partisan as Orrin Hatch (R., Utah), it might make some sense. Clinton, after all, went to Hatch and said, “What do I have to do to avoid a big confirmation fight?” and Hatch replied, “Don’t nominate Bruce Babbitt or Mario Cuomo. Ruth Ginsburg would be okay.” As has been documented on this site, Ginsburg was no middle of the roader. Hatch was not refusing the president’s right to nominate a liberal; he just said that two very liberal former governors would provoke more opposition. Moreover, Hatch did not extort President Clinton into consultation with threats of Borking and filibuster.
If President Bush went to Leahy with a list of five or seven conservatives and Leahy’s response was, “Don’t nominate X or Y but A, B, and C would be acceptable,” that would be one thing. But as Senator Schumer (R., N.Y.) has said in the past, his advice would be to recommend Arlen Specter or someone similar. Nan Aron and Ralph Neas have stated they would vehemently oppose ALL conservatives on the president’s list.
If the Democrats want to pick a couple of nominees who they regard as particularly provocative, fine. But the Democratic minority is angling to deny a conservative president, with a conservative Senate–who campaigned on the need for conservative judges–the ability to replace a conservative justice with a conservative. Chutzpah!
Let’s face it: Kennedy, Durbin, Schumer, Leahy, and Boxer are judicial Terminators–they can’t be bargained with, can’t be reasoned with, they don’t feel pity, remorse, or fear. And they absolutely will not stop, ever, until a conservative nomination is dead.
So, why not invite only red-state and moderate Democrats to consult? Bring over Ben Nelson (Neb.), Mark Pryor (Ark.), Evan Bayh (Ind.), Tom Carper (Del.), Joe Lieberman (Conn.), Bill Nelson (Fla.), Kent Conrad (N.D.), Blanche Lincoln (Ark.), Ken Salazar (Colo.), Debbie Stabenow (Mich.), Mary Landrieu (La.), Tim Johnson (S.D.), Max Baucus (Mont.), Robert Byrd (W.Va.), and Jeff Bingaman (N.M.) to the White House and tell them they have 60 minutes, three vetoes, and their home state press will briefed on their behavior after the meeting.