Ed Whelan at The Ethics and Public Policy Center argues that despite Democratic control of the Senate President Bush still has a good chance of getting a quality nominee onto the Supreme Court should an opening appear. Getting judges approved for the Federal Court of Appeals looks much more difficult but then it has been difficult for the last six years even with the Democrats in the minority.
The core of Whelan's case is this:
...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.
Forty-one of 45 Democrats voted against Justice Alito's nomination. But the four Democrats who voted for him -- Byrd, Conrad, Johnson, and Ben Nelson -- would be decent bets to vote for the next strong conservative nominee. To be sure, the votes of Byrd, Conrad, and Nelson may have been influenced by the fact that they were up for re-election this year. But since their re-election prospects were never in serious peril, that factor would not seem a major one.
Besides, of course, other Democrats are now looking ahead to re-election in 2008. Along with Johnson (South Dakota), Senators Baucus (Montana), Landrieu (Louisiana), and Pryor (Arkansas) will be running in "red" states in 2008. Especially if they face the prospect of hefty Republican opponents, they won't be eager to be siding with Teddy Kennedy as he rants against the nominee.
Senator-Elect Casey of Pennsylvania is an eighth Democrat whom the White House could reasonably look to for a "yes" vote on confirmation. Casey might as well dance on the grave of his father (a hero of mine) if he would vote against a nominee who could provide the decisive vote to restore abortion policy to the democratic processes.
In sum, a high-quality conservative nominee with a good public presence -- and with the support of the broader conservative coalition that coalesced around Chief Justice Roberts and Justice Alito -- should be able to hold all, or virtually all, the 49 Republicans and to pick off the one or more Democrats needed for confirmation. Vice President Cheney's tiebreaking vote shouldn't even be needed.
He might have added to the mix that Jim Webb(VA) will be likely to support conservative judges and Joe Lieberman (CT) is not a safe bet to toe the party line set down by the Kennedy/Leahy/Kerry cabal. Another wild card is Hillary Clinton who will probably wish to appear moderate and reasonable in preparation for her presidential run in 2008.
All in all, things may not be quite as bleak as they seemed last Tuesday. There is a likelihood that at least one of the current liberal justices will step down now that the Democrats have captured the senate. Justice Stevens is 86, Justice Ginsburg is 73, and one or both of them may have been waiting until this election to retire with the expectation that a Democratic senate would prevent President Bush from nominating a conservative to replace them. We'll see whether or not they're calculation proves correct.