April 30, 2005

Democrats Foreclosing Minority SCOTUS Appointment -- Or Making It More Likely?

Professor Steven Calabresi argues that the Democrats have already won the battle to keep conservative women, minorities, and Catholics off the Supreme Court by their use of the filibuster against Bush Appellate nominees. Miguel Estrada has withdrawn himself from consideration. Janice Rogers Brown, Bill Pryor, Priscilla Owen and Carolyn Kuhl have yet to be confirmed, though Pryor sits on the bench through a recess appointment. He presumes that the failure of the Senate to confirm these judges is grounds for keeping them off the Supreme Court, noting that only older white men are mentioned as possible nominees in the event of a Supreme Court resignation or death. I disagree with Calabresi, but let me come back to that later.

This has happened, of course, due to the desire of Democrats to avoid the appointment of a certain kind of justice to the Supreme Court.

When George W. Bush became president in 2001, the legal left and the Democratic Party rallied around the slogan "No more Clarence Thomases." By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men.

This is what is at stake in the fight that rages now over whether the filibuster of judges gets abolished. Leading Democratic activists like Bruce Ackerman have called on Senate Democrats never to allow another Antonin Scalia or Clarence Thomas on the Supreme Court. If they succeed in establishing the proposition that it takes 60 instead of 51 votes to get on the Supreme Court, conservatives can forget about ever again appointing a Scalia or a Thomas.

On this point, I agree. Compromise with the Democrats, never a good idea when we are dealing with principle or constitutional matters, is impossible on this point. Senate Republicans need to choke the life out of the filibuster of judicial nominees now, for that tactic will surely be used this summer when Chief Justice Rehnquist (presumably) will resign due to ill health. The nation's highest court, the only one actually established by the Constitution, must not be allowed to continue to be a tool of the political minority.

More to the point, the Democrats must not be allowed to post a metaphorical "No Conservative Minorities Allowed" sign on the bench of our nation's highest court.

Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.

Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.

These are mainstream jurists with mainstream political philosophies. Most have been handily reelected to judicial office by the voters of their states, or confirmed handily for District Court seats by the Senate. There is no reason for them not to be confirmed. But what Senate Democrats do not realize is that they may be creating their own worst nightmare. I hope President Bush simply bumps one of these nominees up to the Supreme Court.

Some of you may ask how that could happen. After all, they don't have Circuit Court experience. My response is that the lack of such experience is irrelevant and unnecessary.

Sandra Day O'Connor was a state judge in Arizona at the time of her nomination. William Brennan was a state Supreme Court justice in New Jersey. William Rehnquist was an assistant attorney general. Earl Warren was governor of California. Hugo Black was a US Senator from Alabama. I could name others as well, but I think you see the point. Experience on the federal bench is not now and never has been a requirement to be nominated to the Supreme Court -- and each of those I mention is considered to be a great or near great justice.

Now here is where I disagree with Calabresi. I do not think that some of these potential Supreme Court nominees need be taken out of consideration. Justice Janice Rogers Brown and Justice Priscilla Owens have current background checks, have had hearings and Judiciary Committee votes in recent weeks. There is no need to reinvent the wheel with either of them. George W. Bush could take a stand and make the nomination to the Supreme Court and justify it with the state Supreme Court experience and the complete record that has been compiled for the current confirmation battle. Hearings could be abbreviated (after all, what more is there to bring out?), and the new justice seated quickly. That would be the ideal moment for the nuclear option to be used.

For that matter, the president could let it be known privately that the nominee had better be approved quickly, lest his replacement nominee be even less palatable and more bulletproof. Who might the nominee be? Either Attorney General Alberto Gonzalez, whose criticism of Owens while he was a Texas Supreme Court justice is used as an excuse to hold up her nomination and who was recently confirmed; or Senator John Cornyn, who like Gonzalez is also a former justice of the Texas Supreme Court and whose status as a Senator would make him difficult for Senate Democrats to reject. Rather than allow either of the alternatives to be put forward, Democrats would likely fold their hand and give in.

(Hat Tip -- Southern Appeal)

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