Few events mobilize as many interest groups and set Washington atwitter as much as a Supreme Court vacancy. In the Bush White House, I served on a five-person committee charged with recommending nominees for Supreme Court vacancies. We had the opportunity to do so twice, though admittedly it took us three nominees.
We collected thick binders of background material on prospective nominees — not just opinions, utterances and legal writings, but everything from college transcripts to tax-return summaries to charity dinner speeches. We had years to prepare, update and review this exhaustive research. It helped get Chief Justice John Roberts confirmed within three months.
Just over 100 days in, Barack Obama’s White House and Justice Department haven’t had the time to properly vet prospects or complete the thorough review this decision requires. So Mr. Obama was wise to suggest that confirmation of David Souter’s replacement would take six months. Five administration nominees have already been found with unpaid taxes, and Mr. Obama knows he has used up any capital that could have purchased forgiveness for such offenses by a Supreme Court nominee.
In my service on the vacancy committee, I was startled by how many prospective nominees didn’t want to be considered, an experience Team Obama is likely to have. Some prospects were content to have their names mentioned but had no interest in being nominated, because the process has a reputation for brutality.
Mr. Obama has several things working in his favor. First, Democrats control the Senate. It helps a great deal to have the Judiciary Committee chairman as an ally.
Republicans also generally do not treat Supreme Court nominees as roughly as do Democrats. Consider their treatment of President Bill Clinton’s picks for the high court. Ruth Bader Ginsberg was confirmed by a 96-3 vote in 1993. The following year, Stephen Breyer was confirmed by a vote of 87-9. There were no fireworks at either hearing and nothing close to what Democrats did to Robert Bork and Clarence Thomas.
Because Mr. Souter turned out to be reliably liberal, an Obama nominee is also unlikely to dramatically change the court’s direction. A liberal replacing a liberal will smooth the path for most potential nominees.
However, Mr. Obama will pay a price for voting against Mr. Roberts and Samuel Alito after calling them “qualified” and lauding their temperament, humility, excellence, passion for the law, and respect for precedent. Both won confirmation with bipartisan support. By voting against well-qualified conservative nominees, Mr. Obama lost the ability to argue that a well-qualified liberal should be given the benefit of the doubt.
As senator, Mr. Obama also voted to allow a filibuster of Mr. Alito (which failed and the nomination came to a vote). So now as president, Mr. Obama can’t insist that his nominee has a right to a full Senate vote.
This matters because Rule IV of the Senate Judiciary Committee requires that a motion to end debate and bring a nominee to a vote pass with “ten votes in the affirmative, one of which must be cast by the minority.” Before last week, that Republican was likely to be Arlen Specter, but he’s now a Democrat. Mr. Obama will have to consider if his pick is likely to win over at least one Judiciary Republican.
But unless Mr. Obama picks someone who has acted in a disqualifying manner, he is likely to win. Only 23 of 158 Supreme Court nominees have been rejected or withdrawn (only 14 when the president’s party controlled the Senate).
In the coming debate, Republicans should explain their view of the judiciary’s proper role and why Mr. Obama’s desire that a nominee have “empathy” and “understanding” (fine qualities) is an amorphous basis on which to pick a justice. Should the “empathy standard” apply to the unborn? How about gun owners? What about religious conservatives who believe the court has removed religious influences from American life?
What Mr. Obama wants in a nominee isn’t really “empathy” and “understanding.” He wants a liberal, activist Supreme Court justice. But as Justice Antonin Scalia has said, “It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”
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