Re: Court Progress

Ramesh and John, I just got off the phone with a reporter from the New York Sun about this very subject. What the announcements by Leahy, on the one hand, and Kennedy/Kerry/Reid on the other point out is that the Democrats are fighting an uphill battle in any confirmation battle. Starting with 45 votes, any disagreements about tactics are obviously fatal. Leahy may be voting on principle, or he may be seeking to position himself for opposing the next guy/gal on the grounds that “I knew John Roberts, and you are no John Roberts.” But the reality is that Leahy just announced his vote for a pretty darned strong judicial conservative — a guy who criticized the Supreme Court’s takings decision in Kelo and its trend toward embracing the decisions of the Courts of Zimbabwe in interpreting the U.S. constitution, who refuses to import his own political philosophy into judging, and who lives up to President Bush’s promise to appoint a justice in the mold of Scalia and Thomas. Whether Roberts ends up in lock step with those two justices or not, he’s a damned sight more conservative than other recent Republican appointments who shall go unnamed. The consensus seems to be that he will be at least as conservative, and quite likely more so, than Chief Justice Rehnquist. So in voting to confirm him, Senators like Leahy will have a tough time making a case to oppose judges like Priscilla Owen or Mike Luttig, who, while clearly conservative, have similar records of restraint on controversial issues (Luttig, for instance, authored an opinion striking down a state partial birth abortion ban because of the Supreme Court’s similar decision in Stenberg v. Carhart). The problem for the Democrats here rears its head no matter what they do. If they vote in lockstep opposition to Roberts, they fall victim to the trap you identify (emboldening the White House and looking just plain silly); if they vote in lockstep approval, then the next judicial conservative is all but assured too; and if they split, then they can’t hold together the opposition necessary to filibuster. Obviously, the right strategy here is a difficult one, but it stems from the fact that they keep losing elections. And that’s how it should be. The minority should not have a controlling vote to decide who should be appointed by the President of the majority party.

Shannen W. Coffin — Shannen W. Coffin is a contributing editor to National Review. He previously served in senior legal positions in the Justice Department and Office of Vice President during the George ...

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