Politics & Policy

Senate 2006: Why Hasn’t the GOP Made Judges an Issue?

It's vital to the base, it's helped Republicans win in the past -- so why are they ignoring it this time around?

Ashburn, Va. — This is Rudy Giuliani’s kind of place. The former New York mayor has come here, to the Northern Virginia Criminal Justice Training Academy, to help Sen. George Allen send the message: We’re tough on terrorism, we’re tough on crime, and we care about making Virginia and the United States a safer place.

The crowd, about 200 people in a small auditorium, loves Giuliani, even when he goes off on a side road about being a Yankees fan among the Mets faithful at Shea Stadium. Mr. Mayor: The theme of this campaign is football. It’s Sunday afternoon. Allen has already made an appearance at FedEx field for the beginning of the Redskins’ game against Dallas, and Allen’s entourage includes NFL great David “Deacon” Jones, who played for Allen’s father. Just so everyone gets it, an aide tosses Allen a football, who tosses it to Jones. Suffice it to say that people aren’t thinking about the Yankees and the Mets.

But they are thinking about the issue Giuliani has come here to talk about. “This isn’t a time for turning back the clock, which is, after all, what George’s opponents want to do,” he tells the crowd. “When I listen to the Democrats…what I hear from them is they want to turn back the clock. We Republicans want to deal with the present and the future, and they want to go back before September 11. They want to go back to when we used to play just defense against terrorists.”

Later, Giuliani brings up the many Democrats, some of whom would be in leadership positions if their party wins on Tuesday, who opposed extending the Patriot Act. “That makes no sense when you are at war,” Giuliani says. “It makes no sense at all.” By the end of his talk, the crowd is on its feet. They cheer and begin chanting, “U-S-A! U-S-A! U-S-A!”

When Allen speaks, he talks about terrorism, but he spends more time — true to the location — talking about crime and public safety. We’re fighting gangs, he says. We’re getting more money for police and fire rescue teams. And, “We abolished that lenient, dishonest parole system in Virginia for violent felons — crime rates are down by 26 percent because of truth in sentencing [and] juvenile justice reforms.”          

It’s a popular message, but on this day in Ashburn — as well as on many other days on the campaign trail not only in Virginia, but in other states with close Senate races — something is missing. Despite all the time spent on terrorism, on crime, on the Patriot Act, no one — not Allen, not Giuliani, not anyone — mentions the issue of federal judges. What makes that remarkable is not just that it would be quite relevant to the subject at hand, but that it is also perhaps the single issue dearest to the heart of the Republican base — a base that must turn out on Tuesday if the GOP is to keep control of the Senate and the House.

“It seems to have just dropped off the map as an issue,” says a Washington activist who follows the judicial wars and has been tracking the Allen race. “It’s hard to understand, because many of the top people who have been involved in elections in the last two cycles know that it continues to be a huge applause line, certainly with the base.”

Most observers agree that the judges issue played a significant role in Republican gains in the Senate in the 2002 midterm elections, at a time when Democrats controlled the Senate and were blocking many of President Bush’s appeals-court nominees. This time around, the judicial nominations issue also just happens to have given the GOP its greatest success in the last Congress: the confirmations of Supreme Court Justices John Roberts and Samuel Alito. And, looking forward, there’s no reason to assume that those high-court nominations will be Bush’s last; age, illness, and the vagaries of fate might well mean another vacancy in the next two years.

Should that happen, the president’s choices will be severely constrained if there is a Democratic Senate. But even if Republicans lose a few seats while still keeping control of the Senate — the most likely expected result of Tuesday’s elections — it will be harder to confirm conservative nominees. It seems obvious — although this has been mostly lost in the current campaign — but the success of the president’s nominations has been the result of Republicans having 55 votes in the Senate.

Just look at the Alito confirmation. After letting the dazzling Roberts through, Democrats signaled their intention to fight the next nominee. And indeed, some of them made an effort, but there wasn’t much they could do against a good candidate — and 55 Republican votes. But what if Democrats, instead of having 45 votes, had 48 or 49? They might have been able to throw more roadblocks in Alito’s path. If they had 50, things would have been much more difficult. And if they had 51, we would still be investigating the Concerned Alumni of Princeton.

In addition, the number of Republican votes could well determine whether Democrats return to the filibuster strategy to block Bush’s judicial choices. The reason there was a “Gang of 14” deal on the president’s appeals-court nominees was that Republicans credibly threatened to break through the Democrats’ filibusters once and for all. But it was never precisely clear that the GOP had the votes to do it, even with 55 Republican senators. What would be completely clear, if Republicans have just 50 or 51 or 52 votes, is that they would not have the votes to stop a Democratic filibuster. Democrats would act accordingly.

Indeed, Sen. Joseph Biden, a senior Democrat on the Senate Judiciary Committee, was asked on CBS Sunday how Democratic victories would affect peoples’ lives — even if those victories were to mean just more seats in the Senate without outright Democratic control. “Well, I think one of the things they’ll see different if the Senate gap is closed, you’ll not see many more right-wing nominees for the Supreme Court,” Biden said. “I think that will, I think the president will have to go a more moderate route on choices for the Supreme Court, if there are any.”

In the last week, President Bush has made judges an issue, especially during campaign stops in Montana and Missouri. “I want you to hear this loud and clear,” the president said at a Conrad Burns rally in Billings, Montana. “If the Democrats controlled the Senate, John Roberts would not be the Chief Justice today. He’d still be waiting for the Democrats to give him a hearing for his seat on the Court of Appeals. If the people of Montana want good judges, judges who will not legislate from the bench, judges like John Roberts and Sam Alito, you vote for Conrad Burns for the United States Senate.”

It was, as the activist said, a big applause line. And        Bush’s words were welcome news to the people who have been trying to keep the judges issue front and center. But they worry that it is too little, too late. If Republicans lose the Senate, or lose even a few seats in the Senate, the president will be significantly weakened on the issue most important to his party’s base. And GOP strategists will be asking the question: Why didn’t we make a big deal of this when we had the chance?

 – Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.


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