As Senate Democrats and Republicans continue their sparring match over judicial nominees, the Democrats seem to understand the politics of the battle far better than the Republicans.
Democrats understand that they win when they keep Republicans merely frustrated but not outraged, but, when the judiciary becomes a major public issue, Republicans almost always beat the Democrats to a pulp.
Yet, every time Republicans threaten action bold enough to move the nomination fight from a circus sideshow to the political main tent, Democrats buy them off with cotton candy promises.
They did it again last week when, against initial Republican moves to “shut down the Senate” to protest Democratic obstructionism on judges — only one appeals court nominee approved so far this year — Majority Leader Harry Reid, D-Nev., only pretended to budge.
He promised to “try” to secure the confirmation of three appellate nominees before Memorial Day. Republicans called off their Senate shutdown, even though Reid would not say which nominees would be considered.
That last point is crucial. Just the day before, President Bush had broken a decade-long impasse by agreeing to replace one of two appellate nominees from Michigan with a liberal Democrat who is a cousin of Sen. Carl Levin, D-Mich.
If both Michigan nominees are confirmed before Memorial Day, Reid can claim he has met two-thirds of his pledge even though the net number of Bush nominees (compared with Democratic ones) will not have grown at all.
Then, earlier this week, Democratic Judiciary Committee Chairman Patrick Leahy, D-Vt., quickly scheduled a hearing for Steven Agee of Virginia, a moderate Republican who replaced Bush’s first choice for an appeals court spot after Democratic Sen. Jim Webb, D-Va., refused to approve the original nominee.
In short, Reid may try to meet his “promise” without bowing even once to Republicans’ real wishes.
Ranking Judiciary Republican Arlen Specter of Pennsylvania, no conservative firebrand, sent a letter to Leahy Wednesday pushing for confirmation of Bush nominees Peter Keisler for the D.C. Circuit, who has been waiting for a committee vote for an astonishing 660 days, and Steve Matthews and Robert Conrad for the 4th Circuit Court of Appeals, which is so undermanned that it officially is a “judicial emergency.” The nonpartisan North Carolina Bar Association also wrote a letter Wednesday demanding Conrad’s confirmation.
Republicans ought to follow Specter’s lead, find some spine and ratchet up the pressure. Here’s the deal: Without even trying to substitute their own policy preferences for the letter of the law, conservative judges faithful to the Constitution tend to reach results far more popular, on subject after subject, than liberal judges do.
When it comes to faith in the public square, for instance, the public overwhelmingly approves of dignified faith-based displays (on Christmas displays, 90 percent, CNN, 2006), inclusive prayers at school events, and the like.
In 2004, for example, the Pew Research Center found that by a margin of 72 percent to 23 percent, Americans think a Ten Commandments display in a government building is “proper.”
On judicially imposed homosexual marriage, the story is the same; the gay marriage issue alone is credited with turning out hundreds of thousands of extra conservative voters in the 2004 elections.
In poll after poll, huge majorities approve of strong property rights against government use of eminent domain. Overwhelming majorities, of all races, oppose racial preferences as public policy.
On the Pledge of Allegiance (87 percent, Opinion Dynamics, 2005), on letting confessed criminals off due to technicalities, and on gun rights (73 percent, Gallup, February 2008), the story is the same: The public approves of the results reached by conservative, “textualist” judges and disagrees with those reached by liberal ones.
On the most contentious issue of all, abortion, the public overwhelmingly favors conservatives. Consistently, Americans oppose partial-birth abortion and approve of parental consent, 24-hour waiting periods, and mandatory information about abortion alternatives. Large pluralities favor “more strict” restrictions over “less strict” ones. And single-issue pro-life voters outnumber single-issue pro-choice voters in every election.
Finally, when faced with Supreme Court vacancies in 2005, four major pollsters all found significant pluralities wanting President Bush to choose a conservative over a liberal.
So why are Republican senators so slow to gird themselves and march to battle?
Quin Hillyer is associate editorial page editor of The Washington Examiner. He can be reached at [email protected].
