Whoever Barack Obama chooses for the Supreme Court, the president will start with the huge advantage of a 59-40 Democratic majority in the Senate. (It’ll be 60-40 if Al Franken is ultimately named the winner in Minnesota.) But there’s another ratio that will also be critical in the coming confirmation battle: 12-7. That’s the number of Democrats to Republicans on the Senate Judiciary Committee.
The figure became so lopsided when Sen. Arlen Specter switched parties. Majority Democrats did not allow Republicans to replace Specter, turning a committee with 11 Democrats and eight Republicans into a 12-7 panel. The Judiciary Committee has not been that unevenly divided in decades.
The margin means Democrats can do just about anything they want. “They could nominate Michael Moore and the Democratic caucus would confirm him,” one dejected Senate Republican aide told me. Democrats have so many votes that they can afford to lose a few centrists and still have a comfortable margin of victory, even in the unlikely event that Republicans unanimously oppose the nominee.
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 drumbeat of attacks on Sen. Jeff Sessions, who is now the ranking Republican on the Judiciary Committee and who will run things for the GOP side during what is sure to be a high-profile confirmation hearing.
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.”
We’re now seeing press accounts, particularly on the Internet, that are re-playing Sessions’ 1986 experience. Sessions has been mostly silent about it, 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 chooses for the Court. The president raised red flags with Republicans when he said he would pick a nominee with a “quality of empathy,” a candidate who “understands that justice isn’t about some abstract legal theory or footnote in a case book.” To GOP senators, that description had “judicial activist” written all over it.
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 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 try.
”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 odds are Republicans will be fairer to Obama’s nominee than Obama was to George W. Bush’s. That wouldn’t be hard. But talking to Republicans as they prepare, they’re ready to ask difficult, substantive questions of the next nominee — no matter how outnumbered they are.
Byron York, The Examiner’s chief political correspondent, can be contacted at [email protected]. His column appears on Tuesday and Friday, and his stories and blog posts can be read daily at ExaminerPolitics.com.
