I have a new piece up today, “Dems attack before Supreme Court fight begins.” It discusses not only the Democrats’ enormous advantage in the upcoming Supreme Court confirmation fight — they have a 60-40 majority in the Senate, if Al Franken is eventually seated — but also on the Senate Judiciary Committee.
Earlier this year, the committee was made up of eleven Democrats and eight Republicans. Then Sen. Arlen Specter switched sides. Majority Democrats did not allow Republicans to replace Specter, turning an 11-8 committee into a 12-7 panel. The committee has not been that unevenly divided in decades, and it’s a huge advantage for the majority party. “They could nominate Michael Moore and the Democratic caucus would confirm him,” a dejected Republican aide told me.
Republicans aren’t boo-hooing about the situation; they know that if they wanted more clout in the Senate, they should have won more seats in 2008. But they are learning now that the imbalance of power isn’t keeping Democrats and their allies outside the Senate from gearing up for big fight, even if their adversary is virtually powerless.
The first sign of hostilities is the number of attacks on Sen. Jeff Sessions, the new ranking Republican on the committee. Sessions isn’t the most senior Republican on the committee, but instead came into the job through a convoluted set of circumstances. When Specter defected to the Democrats, the next in line for top Republican on the committee was Sen. Orrin Hatch. But Hatch had been both chairman and ranking member of the committee in the past, and the GOP’s rules prohibited him from going back. Next was Sen. Charles Grassley, but Grassley is already the top Republican on the Senate Finance Committee and can’t do both. Then there was Sen. Jon Kyl, but Kyl is the Senate Republican Whip, a leadership position that precludes his also being the ranking member on a committee. So the job went to the fourth-in-line Sessions.
Twenty-three years ago, Sessions, then a United States Attorney in Alabama, was nominated for a federal judgeship. His nomination was defeated in the Judiciary Committee after he was accused of having made racially insensitive remarks, including allegedly calling the National Association for the Advancement of Colored People (as well as the American Civil Liberties Union) “un-American.” Now, we’re seeing lots of press accounts, particularly on the Internet, that are re-playing the 1986 confirmation fight. Many are making prominent use of Sessions’ full name, Jefferson Beauregard Sessions III. People who in 2008 felt it was an act of gross insensitivity, or even worse, to refer to the Democratic candidate for president as Barack Hussein Obama are now regularly referring to the Senator from Alabama as Jefferson Beauregard Sessions III.
Sessions has been mostly silent about the criticism, at least so far. He knows Democrats might try to make the coming confirmation fight about him, and not the positions and legal philosophy of President Obama’s nominee. Sessions also realizes that every minute he spends explaining a statement he may or may not have made more than 20 years ago is a minute not spent talking about the positions and legal philosophy of the Supreme Court nominee.
But for Democrats, there is a benefit to pre-tainting Sessions. What if some inconvenient fact about the nominee emerges during the hearing? Or what if Republicans simply make a solid case against the nominee’s judicial positions? Better to have their leader discredited ahead of time.
“So when Democrats say Obama’s nominee is a moderate pragmatist, and Republicans disagree, they’ll just say Sessions is an example of the radical, reactionary old Trent Lott/Strom Thurmond Republican party,” one Sessions ally told me. “They’re going to try to make Sessions the poster boy for that.”
Meanwhile, there is the small detail of who Obama actually nominates. A number of observers have suggested that since this is a liberal-for-liberal swap between Souter and whoever Obama chooses, it won’t have any great impact on the Court’s ideological makeup. Obama might think otherwise. Retiring Justice David Souter, although a liberal, is held by various observers to be a bit less reliably liberal then Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer. No matter how much talk there is of “moderates” and “pragmatists” and “one-for-one” switches, Obama might see this as an opportunity to move the leftward side of the Court further to the left.
Republicans also remember that Barack Obama, when he was in the Senate, voted against both Chief Justice John Roberts and Justice Samuel Alito. Senator Obama actually supported, and voted for, a filibuster of Alito. “I assume he doesn’t want his Supreme Court nominee filibustered,” one GOP judicial activist told me — while noting that the 40 Republicans in the Senate don’t even have to power to do that. ”President Obama should hope,” GOP Sen. Lindsey Graham said recently, ”that Republican senators are fairer than he was when he was a senator.”
No one can say what will happen in the future but Republicans probably will be fairer to Obama’s nominee than Obama was to George W. Bush’s. Simply not attempting to filibuster the nominee would satisfy that requirement. But talking to Republicans as they prepare, they’re ready to ask solid, substantive questions of the next nominee, no matter how outnumbered they are.
