EDITOR’S NOTE: This piece appears in the February 13, 2006, issue of National Review.
If Samuel Alito is eventually confirmed as a justice, as he almost certainly will be, we won’t have a conservative Supreme Court. Most legal conservatives do not regard Justice Anthony Kennedy as one of their number. So even if Alito and Chief Justice Roberts turn out to be everything a conservative could want in a justice, the conservative bloc on the Court will include only four justices.
Scratch that “only.” In the history of the modern conservative movement, and certainly of the conservative reaction to judicial activism that began during the Warren Court, four represents a high-water mark. The last time conservatives had anything close to this level of strength on the Court was between 1991 and 1993, when Chief Justice William Rehnquist, Byron White, Antonin Scalia, and Clarence Thomas made up the Court’s right wing. And Justice White wasn’t really a conservative, although he joined conservatives in refusing to read a right to abortion or to sodomy into the Constitution. Roberts may turn out to be a little to Rehnquist’s left, but Alito is almost certainly well to White’s right.
Getting four justices on the Court is a substantial achievement for conservatives — and one from which they should learn as they work toward five.
Elections matter. That’s the most important (and obvious) lesson. Robert Bork was defeated, and Clarence Thomas was nearly defeated, by Democratic Senates. The confirmations of Roberts and Alito were mostly won on Election Day 2004, when voters returned President Bush to power and expanded the Republican majority in the Senate. Not only that: They elected at least 50 senators who oppose Roe v. Wade, ensuring that the mere suspicion of a nominee’s willingness to vote against Roe would not be fatal. As long as Republicans stick together in support of a nomination, it will be very hard for Democrats to defeat the nominee.
Filibusters are overrated. It would be especially hard because the minority party cannot easily use the filibuster to defeat a Supreme Court nominee. Polls have shown that a majority of the public favors confirming Alito. When Democrats have filibustered other judicial nominees, the public has mostly been tuned out. Those nominations have concerned appellate judgeships, and most people neither know nor care about them. Denying an up-or-down vote to a nominee for the Supreme Court is a higher-profile, and thus riskier, proposition. Since Bush picked clearly qualified, mainstream conservative judges as his nominees, it quickly became clear that Democrats would filibuster only at their own peril.
If the Democrats filibuster, the public will likely react negatively. Republicans might retaliate by changing the rules to prevent filibusters of judges — even the lower-profile filibusters on which the Democrats have sometimes prevailed.
The question was merely whether their left-wing base would force them to follow this course of folly; and the answer appears to be no. Democrats can retain their theoretical right to filibuster so long as they never exercise it when it really counts….
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