More Disorder in the Court?
If there's a Supreme Court vacancy, the Democrats will have a lot to say about it
Editor's Note: Leonard Leo, quoted in this story, asked that his high court assessment be more fully explained. Members of the coalition working to win confirmation for White House judicial nominees remain confident, he says, that with a strategy that includes targeting Democrats from states that voted for Presiden Bush, conservatives can still win approval of nominees in the mold of Justice Samuel Alito. Four such Democrats, all still in office, were among the 58 senators who voted to confirm Alito earlier this year.
Just days before last month's elections, a conservative weekly's website suggested that a member of the U.S. Supreme Court was gravely ill and that friends had been asked to pray for 86-year-old Justice John Paul Stevens.
Such rumors are normally "too ghoulish to repeat publicly," wrote Sean Rushton on HumanEvents.com. But with control of the Senate at stake, it is "news that should be considered," he said, even if it's unfounded.
That get-out-the-vote effort stuck out even in a campaign full of cynical appeals. Today, nearly a month after Democrats won both houses of Congress, the Stevens scuttlebutt remains uncorroboratedthe senior justice has participated fully in recent arguments, as has Justice Ruth Bader Ginsburg, 73, who's also been the subject of rumors of poor health. But the effort by Rushton, former director of a conservative group devoted to winning approval of White House judicial nominations, underscored the right wing's investment in the issue of high court nominees. With newly powerful Democrats like New York Sen. Charles Schumer of the Judiciary Committee vowing an end to "the days of hard-right judges," the nominee game has become far more complicated.
Vermont Sen. Patrick Leahy, the Democrat who will chair the Judiciary Committee, said he is willing to work with Bush but noted that "the power to avoid destructive political warfare over a vacancy on the Supreme Court lies with the president." So what does that mean for future nominations? The new dynamic has unleashed speculation over whom President Bush may consider if he gets another opportunity to nominate a Supreme Court justiceit would be his thirdduring his remaining two years. And it has reinvigorated strategy sessions on all sides to assess the many "what if's."
Would the lame-duck president instigate a potentially unwinnable war with Senate Democrats by putting up a conservative in the mold of Samuel Alito, described recently by a GOP activist as "one of the most conservative federal appeals court judges ever confirmed"? Or would he work with Democrats to build consensus around a moderate conservative with a shot at winning a Senate confirmation vote? And would the president try to make history with a Hispanic nomineeor make up for his failed effort to get White House Counsel Harriet Miers on the bench and pick a woman?
"Obviously, everything changed when the majority changed," says Mark Agrast of the liberal Center for American Progress. "The issue of filibuster, which colored the whole discussion previously, is off the table, and nominees now will go through the regular order: from Judiciary Committee, to the Senate floor, and to a vote." And both sides are eager to test the waters.