Can John Paul Stevens say it any more clearly without actually saying it? In a number of high-profile interviews, the Supreme Court justice, who will be 90 years old on April 20, has been sending the message in big, flashing letters: I’M GOING TO RETIRE.
Even though Stevens has left himself a tiny bit of wiggle room — all he’ll say for sure is that he will step down while Barack Obama is president — everybody involved in the process of nominating and confirming a replacement has gotten the idea. “It would seem odd for Democrats and Justice Stevens to allow the narrative that he is going to retire to become universally accepted, if in fact he’s not going to retire,” says one GOP Senate aide. “Why would they create the sense of inevitability that there is going to be a departure, and then there be no departure?”
Anyone who is 90 years old doesn’t need an explanation for retiring. But even though Obama will be in office for three more years, there is one particularly pressing reason Democrats would like to see Stevens go now rather than later. That reason is coming up this November.
Democratic leaders know their 59-vote majority in the Senate will likely shrink after the midterm elections. It’s a long shot, but Republicans might even win control of the Senate altogether. That scenario would be a nightmare for the White House, but even continued Democratic rule with a smaller majority would give the president less flexibility in choosing a successor to Stevens. And the narrower the Democratic majority, the greater the possibility Republicans might filibuster a particularly objectionable Obama nominee.
Democrats have only themselves to blame for any nervousness they are now feeling. They are the ones who, as the minority party in 2003, brought the filibuster foursquare into the judicial nomination process. When they did it, Republicans held a slim 51 to 49 majority, which meant that the GOP had to convince nine Democrats to join them to reach the 60 votes required to stop the filibusters. The best Republicans were able to do was four or five; the Democrats prevailed.
But after the 2004 elections, Republicans had a bigger majority, 55 to 45. That meant they only needed five Democratic crossovers. Democrats began to lose their nerve, and after Republicans threatened to kill the judicial filibuster altogether, the so-called “Gang of 14” negotiations brought an end to the showdown. Most of the filibustered Bush judges were confirmed, and senators agreed that future nominees would be filibustered only under “extraordinary circumstances.”
If Stevens were to resign soon, and his successor’s confirmation take place before November, there would be virtually no chance of a filibuster no matter how extraordinary the circumstances. With 59 votes, Democrats would need just one Republican to join with them to reach a filibuster-proof 60 votes. Republicans could win only by keeping every one of their 41 senators in line, and there’s almost no possibility that would happen.
But say the GOP picks up seven seats in November. Democrats will remain in charge, but by a 52-48 margin. At that point, Democrats would need eight Republicans to join them in order to stop a GOP filibuster — a much more difficult task.
The vibe from Republicans these days is not comforting to Democrats. On “Fox News Sunday,” host Chris Wallace asked Republican Sen. Jon Kyl, a senior member of the Senate Judiciary Committee, “Are you willing to pledge right now that the GOP will not filibuster whoever the president nominates?”
“It will all depend on what kind of person it is,” Kyl answered. “I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test. And if he doesn’t nominate someone who is overly ideological, you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in filibuster.”
Translation: Maybe we will, and maybe we won’t.
So the calculation for Democrats is this: With 59 votes, the president can nominate anybody he wants. With 52 votes, he’d probably have to pick a more centrist nominee if he wants to ensure against a possible GOP blockade. Is it any wonder why the White House is virtually holding the door open for Stevens to make his exit?
Byron York, the Washington Examiner’s chief political correspondent, can be contacted at [email protected]. His column appears on Tuesday and Friday, and his stories and blog posts appears on www.ExaminerPolitics.com ExaminerPolitics.com.
