Nomination Politics

John Hinderaker of Powerline has authored an interesting piece in The Daily Standard. He is right about the fact that Democrats were rendered impotent by the president’s nomination of Judge Roberts to replace outgoing justice Sandra Day O’Connor and he is right that now that Judge Robert’s nomination has been elevated from associate to chief justice the Democrats will bring out the guns over the president’s next nominee to replace Justice O’Connor.

Where Mr. Hinderaker errs is in his summation that the nomination of Judge Roberts to chief justice as opposed to associate will be politically deleterious to the president and the nomination process. It won’t.

In Mr. Hinderaker’s esteemed judgment, the politically expedient thing to do would have been to leave things as they were. By nominating Roberts to replace Justice O’Connor the president had artfully insured that Justice O’Connor would be replaced by a nominee who could tilt the court to the right while remaining impervious to liberal attacks. This much is true, for Judge Robert’s brilliant legal intellect, impressive resume, and pragmatic conservatism have made it nearly impossible for the left to demonize him in the same manner they did past nominees to the Supreme Court.

The flaw in this logic however is the assumption that Democrats would have shrugged in defeat and simply said, "Well, you got us" once Judge Roberts was confirmed. Unable to thwart the Robert’s nomination there is no doubt that Democrats would have then centered all their pent-up energy on the next vacancy that they were unable to expend on the previous one. The fact that the president would be then nominating one judicial conservative to replace another for chief justice would not matter, for the Democrats would argue that since the Court’s ideological composition was not maintained in the previous vacancy it must be reinstated with the current one. A fight/debate over the Court’s direction was and is inevitable, the only difference now is that fight will be over O’Connor’s seat as opposed to Rehnquist’s.

Further, the conventional wisdom that the president’s reduced political standing will diminish his ability to win this fight is also wrong. A substantial majority of senators represent conservative-leaning states that cast their electoral votes for the president in last year’s election. One of the main concerns of rank-and-file conservatives is the direction of the federal judiciary, and the judiciary is one of the few issues which motivates conservatives to turnout in droves on election day. Red state senators will vote to confirm judicial conservatives not because of the president’s political capitol or standing, but because doing so is in the best interests of their own political standing back home. Failing to send judicial conservatives to the bench will simply give rank-and-file conservatives already disenchanted with Washington Republicans one more excuse to stay home on election day and make Democrats representing Republican states even more vulnerable than they may already be. Political self-preservation, not the president’s political clout, will carry the day.