Patterico's Pontifications


Ed Whelan: Bush Can Still Confirm Conservative Judges

Filed under: Judiciary — Patterico @ 11:28 am

Contrary to my recent dour predictions, Ed Whelan — whom I greatly admire — says that we can still confirm conservative judges. He notes that 11 Democrats voted for Clarence Thomas in 1991, and adds:

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

You should read the whole thing.

I love Whelan’s attitude, but I’m not convinced. I’m sure that there are plenty of great candidates out there, but I’m not already aware of very many to whom I could give my full-throated support. Of the few clearly qualified candidates out there, I have a sneaking suspicion that most or all will be too controversial for President Bush. I think Bush will be too cowardly to start the fight that Whelan and I want to see him start.

Moreover, I think it’s inevitable that the next Supreme Court nominee — whether the nomination is made by President Bush or President Hillary — will have to be a woman. That cuts the pool of qualified candidates in half.

I think Whelan is exactly right in theory. Bush should nominate a strong candidate should the opportunity arise. It would be incredibly energizing, and would give the base the best possible reason to turn out in 2008.

But if the lesson learned from this election was to screw the base and target centrists, I fear that Whelan’s advice will be ignored. So, contrary to Whelan’s advice, I continue to despair — and I continue to assert that Bush has confirmed his last decent judge.

P.S. I don’t see a lot of Gang of 14 defenders stepping forth to defend their chillin’ attitudes. The fact is, we lost a lot of good judges by rolling over. If we had used the nuclear option, we would have lost the Senate, and the arrogance of Senate Republicans would have been blamed in large part. But we lost it anyway, and with it the chance to confirm a lot of judges who were thrown under the bus by the Gang of 14.

13 Responses to “Ed Whelan: Bush Can Still Confirm Conservative Judges”

  1. What counts as a strong nominee?

    The Gang of Fourteen has nothing to do, because the Democrats won’t have to filibuster; they’ll just use the Daschle tactic of simply not scheduling the nomination for a vote.

    And that assumes, of course, that nominees even get out of Pat Leahy’s Judiciary Committee. They were remarkably united in committee on Sam Alito, even though the Democrats were unwilling to filibuster the nomination.

    This is just plain bad news.

    [The Gang of 14 has nothing to do now. But they prevented confirmation of many good judges then. — P]

    Dana (3e4784)

  2. Strict constructionist judges have widespread support. So does prosecuting the NYT (55% even among Democrats, by one poll). But McCain sabotaged one, and Congress couldn’t even muster the will to condemn the NYT for publishing secrets during a war.

    These issues are going to have to be worked at the grassroots, Patterco. We have two years to make them issues that the political class dare not ignore, along with securing our country from the low key, semi-informal invasion from Mexico.

    Yeah, I call it an invasion, when the “illegals” aren’t coming here to become Americans, and there is a movement to take back the territory Mexico lost after the end of the Mexican-American War.

    larry (336e87)

  3. I think Whelan’s wrong.

    The Dems have, as Whelan acknowledges, gotten more nastier and unified… but in large part because they’ve learned they don’t pay a price for their antics. In fact, given the nuts on the left, not opposing a Bush nominee – any nominee – might be enough to get a Democratic Senator ‘Liebermaned’.

    As for Whelan’s thought that Bush could play the diversity card, the Dems have shown they don’t back down because a nominee ‘happens’ to be black or a woman. The Democrats are equal opportunity slanderers… they’ll go after blacks and women just as hard – perhaps harder – than they’ll go after a white guy.

    And while Whelan is right when he says “the conservative case against liberal judicial activism has powerful public appeal…”, he fails to note how the Democrats have done a rather nice job of taking ‘rule of law’ nominees and turning them into ogres who would have women performing do-it-yourself abortions in alleys and so on. And with the MSM’s help, ogre is a better story than ‘rule of law’.

    But the biggest failure of Whelan is that he assumes that Bush has (1) an interest in getting conservative judges on the Supreme Court and (2) that he’s willing to go to the mattresses with the Democrats over it. A bad assumption in light of Bush’s nomination of Miers, his general reluctance to tangle with the Democrats on anything but Iraq, and his sacking Rumsfeld so quickly following the elections.

    steve sturm (d3e296)

  4. ” I don’t see a lot of Gang of 14 defenders stepping forth to defend their chillin’ attitudes.”

    RIP Mike DeWine. Maybe we can ask him in a seance.

    NCC (9f37aa)

  5. Weekend Wingnut Roundup…

    Democrats take the House and the Senate, Rummy goes to that up-armored Humvee in the sky, Macacawitz concedes, Little Ricky gets his ass kicked, Holy Joe hangs on, Dems take DeLay’s and Foley’s old seats … whew! What a week….

    AGITPROP: Version 3.0, Featuring Blogenfreude (72c8fd)

  6. Janice Rogers Brown! Please! Let her make fools of Joe Biden, Ted Kennedy et al.

    Andy (6feefb)

  7. YES !
    Andy beat me to the punch—Janice Rogers Brown would be an awesome choice, plus one the Dhimmicrats couldn’t vote down.

    Can you imagine the visual impact of the distinguished, poised, confident Janice Rogers Brown calmly responding to the questions of the pompous, snot-nosed Pat Leahy and Joe ‘it’s not a really a comb-over’ Biden.

    And Ted Kennedy, the man who proselytizes to be all for ‘women’s rights’—except for the ‘rights’ of those women he leaves submerged underwater and those women which his relatives sexually molest against their will.
    I’d just love to see “ol’ Senator-scotch-before-lunch” try and pull his usual shennanigans with the brilliant Judge Brown.

    I bet the Dhimmicrats wouldn’t be able to hide their contempt for the black woman who dares to think independently of their patronizing patriarchy.

    Desert Rat (ee9fe2)

  8. I have to agree that conservative judges won’t even get a hearing. Unless the MSM decides to actually make a stink about it, Bush will end up nominating Souters and Kennedys. *shudder*

    sharon (dfeb10)

  9. A Rogers Brown nomination would be political gold for the democrats.

    jpe (9609bc)

  10. jpe,

    How would a Janice Rogers Brown nomination be ‘political gold’ for the Dems ?

    Desert Rat (ee9fe2)

  11. As before I think you are wrong about the gang of 14 deal. You are assuming the votes were there for the nuclear option which is not clear. A failed attempt would have been a disaster. As it was Bush got most of his judges through. A handful were blocked, most for personal rather than ideological reasons. Bush could have gotten more through if he didn’t keep pigheadedly renominating judges which the Democrats had grudges against (like his pointless renomination of Bolton) and if he had been better about filling vacancies in a timely manner. Frist also could have worked harder at pushing nominees through the Senate.

    As for the current situation I think the situation is worse for the court of appeals level where it is easier to just sit on nominations. I think a reasonable nominee could be confirmed for the Supreme Court. Of course my definition of reasonable is probably a lot broader than yours.

    Btw restricting the choice to a woman would actually cut the pool by much more than 50%. I would guess by at least 80%.

    James B. Shearer (fc887e)

  12. We need judges who will abide by the constitution and not the treaties from the UN tyrants and not interpet the constitution to suit themselves or liberal left-wing wussies

    krazy kagu (444070)

  13. According to Jan Greenberg’s book, the Gang of 14 agreed that they would ALL oppose certain (named) Supreme Court nominees, including Janice Brown and Priscilla Owens. Which invariably led to the Miers nomination.

    Probably something to hang around Senator McCain’s neck right about now.

    Kevin Murphy (0b2493)

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