Bush's nominees a lost cause?

Tom DeLay
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Posted: Aug 06, 2007 11:58 AM

Judicial nominations are one of those issues that, for their overarching importance, should be of much greater interest than they are.

Strictly as a matter of impact on national politics over the next four years, there really isn't a bigger single issue in 2008 than the winner's likely replacement of 87-year-old liberal Supreme Court Justice John Paul Stevens.

If Stevens is replaced by a conservative jurist, the Supreme Court's long-standing and undemocratic status of overlord of domestic policy is probably done. On the other hand, Antonin Scalia is no spring chicken, either, and a two-term Democrat president would stand a strong chance of replacing him or centrist Anthony Kennedy with an activist justice.

And yet, the way politics works these days, judicial nominees are of increasingly little electoral significance. This is mostly due to the increasing polarization, or what more neutrally is termed "ideological consistency," of our national politics.

If, for instance, there was a large bloc of habitual Democratic voters who, as a matter of conscience, couldn't bring themselves to support an abortion rights supporter or a pro-racial-preferences or anti-school-prayer candidate, then judges would be a much bigger deal in elections.

As things stand, however, those crossover voters have generally shifted either right or left in the past three decades. Whereas Congress used to be filled with liberal Republicans and traditionalist Democrats, nowadays they're a dying breed, not just in Congress but around the country.

That is to say, anyone predisposed to dislike Hillary Rodham Clinton's judicial nominees is probably already planning to vote against her for plenty of other reasons, and ditto for every other top-tier candidate of both parties.

It's against this backdrop that Senate Republicans and Democrats revive the time-honored and increasingly cynical kabuki dance over President Bush's judicial nominees. Senate Republican leader Mitch McConnell introduced an amendment last week expressing the sense of the Senate that Leslie Southwick, the slandered patriot nominated for the Fifth Circuit Court of Appeals, at least deserves an up or down vote.

Democrats, who have no case against confirming the eminently qualified and respected Southwick specifically, have set aside specifics altogether. Sen. Chuck Schumer now says, in effect, that the president no longer has any right to fill judicial vacancies -- unless the president's name ends with "l-i-n-t-o-n."

McConnell is, as usual, doing the right thing on a couple of counts. First of all, Judge Southwick deserves the up or down vote, period, and to say otherwise is just, well, lying. Secondly, getting Sens. Clinton and Barack Obama on record regarding a judicial nominee's right to the yeas and nays could prove a bit sticky come 2009.

Schumer, also as usual, is shredding the Constitution for short-term partisan advantage. He will probably be successful in this gambit because, without a Supreme Court vacancy to concentrate voters' attention, very few people will notice.

Conservatives justifiably outraged by Democrat obstruction aren't voting for Democrats anyway, while liberals will offer champagne toasts to Fightin' Chuck. In both cases, the bases of each party will get a little more ginned up, which in truth probably helps depressed Republicans more than ascendant Democrats right now.

All of this changes, however, in the case of a Supreme Court vacancy. Senate Majority Leader Harry Reid and Schumer are probably right that their shenanigans on lower court judges won't get them into trouble.

But if they try to block an overwhelmingly qualified Supreme Court nominee, of the kind who, like Justices John Roberts and Samuel Alito, makes his Democratic inquisitors at the hearing look like idiots by comparison, then attention will be paid.

The wife of a slandered nominee tearing up in the background of the hearing coverage; camera-mugging Democrat senators, long since divorced from any realistic assessment of their own intelligence, making fools of themselves again; and harpy activists trying to vilify another likable, next-door-neighbor-nerdy judicial nominee won't go over well. That kind of thing, in an election year, could remind millions of voters why they don't trust Democrats.

The left, then, is playing a dangerous, potentially suicidal game with curious little upside. It's awful what they're doing to Judge Southwick and dozens of other honorable men and women, but politically, it could be the best thing that happens to the GOP in 2008.