February 6, 2006
Democrats Will Need a New Strategy for Next Nominee
By Peter
Brown
It would be
easy, with Samuel Alito now on the Supreme Court, to predict that
if another seat comes open before President Bush leaves office
the ensuing confirmation battle would be one for the record books.
After all,
if Bush did fill a third seat, he essentially would be able to
remake the nation's highest court in his own image.
However,
given what we have learned from the confirmation battles over
John Roberts and Alito, the idea that Ted Kennedy & Co. might
be able to stop another Bush nominee who is similar to those two
men might well be more rhetoric than reality.
Last year,
before the death of Chief Justice William Rehnquist and the retirement
of Sandra Day O'Connor, both Roberts and Alito fit the profile
of the type of judge who conventional wisdom held would inspire
a Democratic battle to the death.
Democratic
interest groups had boasted they would never allow Bush to put
that kind of justice on the court, much less two of them, or would
at the least wage a scorched earth campaign that made the president
pay a heavy political price.
That is
because with Alito joining Antonin Scalia, Clarence Thomas and
Roberts on the court, that provides four strongly conservative
votes. The swing member is now Anthony Kennedy, whom most Democrats
have always thought was less inclined toward their legal philosophy
than O'Connor, whom Alito replaced.
But should
another vacancy occur, it is hard to look at the past six months
of Supreme Court politics and conclude that even if Bush gets
to appoint what would be the fifth vote on the nine-member court,
the confirmation fight would turn out differently..
To borrow
a phrase from Saddam Hussein, Bush's foes predicted the mother
of all battles to stop anyone they considered to be a strict-constructionist
conservative on the high court. But they could not deliver.
Bush's opponents
could not even muster enough votes to filibuster either man, much
less defeat Roberts or Alito on an up-or-down vote.
Candidly,
the lessons of the Alito and Roberts confirmations are that Democrats
had better either take back control of the Senate this November
or get darned close, if they really want to stop the next Bush
nominee, should that be in the cards.
And, they
had better pray for the health of John Paul Stevens, who is both
the most liberal member of the court and its most senior member.
He will be 86 in April.
Stevens,
who has served on the court for 30 years, spends much of his time
at his Florida home. The expectation is that he will wait for
a Democratic president before giving up his seat willingly. The
court's next most liberal member is Ruth Bader Ginsburg who will
be 73 in March and has been treated for colon cancer.
Yet, the
2008 presidential election is almost three years away. If the
Democrats were to win back control of the Senate this year - an
unlikely but not impossible task - that would change the dynamics
of any Supreme Court appointment.
Republicans
currently hold 55 of the 100 seats plus the tiebreaker in Vice
President Dick Cheney. History teaches they will lose some of
those seats in November and current polls show Americans saying
they are in the mood for political change.
Absent such
a major electoral shift, however, the Alito and Roberts confirmation
fights show that Democrats claiming a nominee is out of the judicial
mainstream, which was their argument made against both men, doesn't
cut it. Neither were opponents cries that by confirming Roberts
and Alito senators were endangering the continuation of legal
abortion, which was aimed at energizing Democrats and a handful
of moderate Republicans.
Thus, should
Bush get another Supreme Court appointment and offer a third conservative
who passes the competence test, the Democrats will need to find
a new strategy, either that or hope for election gains in November.
Peter
A. Brown is assistant director of the Quinnipiac University
Polling Institute. He can be reached at peter.brown@quinnipiac.edu
