But if there’s one issue that unites conservatives, it’s support for conservative judicial nominees. At a time when the president’s approval rating has hit rock bottom among his base, Bush should welcome a fight to bring conservatives back into the fold. The successful confirmations for Chief Justice John Roberts and Associate Justice Sam Alito to the Supreme Court represented a crowning moment during the Bush presidency after years of fighting smaller battles for appellate court nominees.
With just 18 months left on the job, Bush faces a predicament: a Democrat-controlled Senate that is hardly eager to confirm his nominees. During the first six months of 2007, the Senate ushered through only three appellate court judges. In addition to Southwick, four others, Jennifer Elrod, Peter Keisler, Raymond Kethledge and Stephen Murphy, await approval.
The recent average of circuit-court confirmations stands at 17 during a president’s final two years in office, according to the Committee for Justice, which cited the Reagan, Bush and Clinton administrations in its study. Little activity will take place after the spring of 2008, so time is quickly running out on the chances that the Bush II administration will be able to match that average.
The possibility of a Supreme Court vacancy this summer raises the stakes even higher. Although no justice has given any indication of resigning, such decisions are rarely broadcast in advance. Fueling the speculation is a short list of possible women and Hispanic nominees drafted by the White House.
Two conservative court-watchers I asked about a potential vacancy offered upbeat analyses of the situation. Curt Levey of the Committee for Justice said he thought the chances of a confirming a conservative nominee were “quite good” because Democrats from traditionally conservative states wouldn’t dare hold up a Supreme Court confirmation.
“Contrary to conventional wisdom, President Bush would have excellent prospects of getting a strong proponent of judicial restraint confirmed,” added Ed Whelan of the Ethics and Public Policy Center. “There are plenty of available Democratic votes to put together a majority in favor of confirmation, and Democrats would pay a steep political price if they resorted to unprecedented measures to obstruct a straight up-or-down vote.”
While the White House has little control over what plays out at the Supreme Court this summer, it does have the ability to shine the light on liberal obstructionism in the Senate. Bush should highlight what’s happening to Leslie Southwick. It’s a cause around which conservatives can rally.