In the midterm elections of November 1986, six years into the Reagan presidency, the Republican party lost control of the Senate. Barely six weeks beforehand, that still-GOP-led body had handily confirmed two crucial Reagan Supreme Court appointments: Associate Justice William Rehnquist’s promotion to the chief’s job and Antonin Scalia’s nomination to the resulting open seat. But the newly Democratic Senate of 1987 would not prove so accommodating. Robert Bork, the president’s first choice to fill the vacancy left by retiring Justice Lewis Powell, would be famously–and roughly–rejected. Those midterm elections wound up mattering rather a lot.
They weren’t the whole story, of course. As an individual, Bork was considerably more controversial than Scalia or Rehnquist had ever been. And with the court closely divided, the confirmation of a second judicial conservative was going to generate stiffer resistance than the first. But Bork would have had a much better shot with a Republican-controlled Senate–both because there simply would have been more votes for him, and because the majority controls the schedule and shapes the debate.
The effect of Bork’s defeat did not end with Anthony Kennedy’s joining the court in his place. The experience of the Bork loss undoubtedly influenced President George H.W. Bush’s selection of a paper-trail-less nominee for his first court opening, David Souter. So it’s reasonable to say that the Republican loss of the Senate in 1986 set back the effort to rein in the Supreme Court and establish a constitutionalist majority there for two decades. Only in the past two years with the nominations and confirmations of John Roberts and Samuel Alito has that goal been advanced.
Advanced–but not reached. Now the court teeters in the balance. President Bush may well have another vacancy to fill in the next two years, and his successor will probably have at least one or two new justices to appoint. A Republican Senate would confirm the next Roberts or Alito. A Democratic Senate might well not. And furthermore, facing a Democratic Senate, President Bush, or a Republican successor, might preemptively compromise and pick a Kennedy rather than a Roberts or an Alito.
What’s more, right now, 16 of the 179 authorized judicial slots on the federal courts of appeal are vacant. So are 33 of the 678 district court positions. With a Republican Senate, President Bush could continue to reshape the federal judiciary over the next two years. Facing a Democratic Senate, he would make much less progress on the constitutionalist agenda at the heart of today’s conservatism.
So which party controls the Senate for the next two years matters a lot. One would expect Republican Senate candidates and the party committees and independent groups that support them to be making an issue of judges. After all, the issue is a proven winner. In 2004, based only on the fights over appellate court nominees–before Bush’s Supreme Court nominations–the question of judges was a major issue in several Senate races, and helped Republicans make a net gain of four Senate seats.
Indeed, in 2004, while picking up a net of four Senate seats–including Tom Daschle’s seat in South Dakota, lost to John Thune–Republicans gained only three seats in the House. If one excludes the five-seat pick-up in Texas courtesy of Tom DeLay’s redistricting, the GOP actually lost two seats in the House. In other words, Republican Senate candidates outperformed House candidates in 2004–and the focus on senators’ distinctive responsibility in confirming judges was part of the reason.
The ridiculous discovery by the New Jersey Supreme Court last week of a constitutional requirement to extend the rights incident to marriage to same-sex couples is a useful reminder of what is at stake in arguments over judicial activism. Obviously, the federal courts matter even more than the individual state courts. And yet, so far as THE WEEKLY STANDARD has been able to determine, no Senate candidate and no independent group is running ads on the issue of judges. Nor are the candidates making this issue a centerpiece of their campaigns.
There is still time to remind voters of Virginia and Tennessee, of Missouri and Montana, all reasonably conservative states, of what is at stake as they cast their Senate votes. There is still time to remind the voters of Pennsylvania and Ohio, also reasonably conservative states, of what is at stake. There is still time to remind the voters of New Jersey that Robert Menendez’s first vote upon being elevated to the Senate was to filibuster their own Samuel Alito.
The issue of judges is both substantively important and politically advantageous to Republican Senate candidates. They don’t have that much else going for them. It would be good if President Bush, the Republican committees, the independent groups, and the candidates themselves reminded voters that when they cast their votes for senator on November 7, they are also helping to determine the shape of the federal courts.
–William Kristol
