Prospect dim for conservative judicial nominees

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - With Democrats in control of Senate, conservatives say chances are slim for the kind of judicial nominees they want to make it onto the bench during the remainder of President Bush’s second term.

In the afterglow of his party’s victory in taking control of the Senate, the engineer of that take-over, Sen. Charles Schumer, D-N.Y. said this week, “My greatest regret in the last two years is that we didn’t stop (Supreme Court Justice Samuel) Alito…. You don’t filibuster unless someone is way out of the mainstream…. Alito clearly seemed to me to be that.”

Schumer needn’t worry too much about the need to filibuster Bush’s judicial nominees next year.

Since Schumer’s party will be in control of the Judiciary Committee, any right-of-center nominee in the mold of Alito or federal appeals court Judge William Pryor, whom the Senate confirmed in 2005, seems likely to be defeated by the committee, with its ten Democrats and nine Republicans.

The new Democratic members of the panel, senators-elect Sheldon Whitehouse of Rhode Island and Ben Cardin of Maryland seem highly unlikely to vote with the GOP members of the committee.

Democrats to watch
If somehow conservative nominees do make it to the Senate floor for a vote, the key Democrats to watch will be the less liberal Democratic senators who voted for Alito last January: Kent Conrad of North Dakota, Robert Byrd of West Virginia, Ben Nelson of Nebraska, and Tim Johnson of South Dakota. The first three just won re-election; Johnson is up for re-election in 2008.

Explore Chief Justice John Roberts' Supreme Court

Outgoing Judiciary Committee chairman Sen. Arlen Specter, R-Pa. addressed the issue Friday in a speech to the right-of-center Federalist Society.

After the crowd gave him a round of welcoming applause, Specter wryly said, “I conclude that most of that applause is for Chief Justice Roberts and Justice Alito.” It was Specter’s skillful leadership that got those nominees on the high court.

He reminded the crowd that Roberts “is sitting there at age 50, with the prospect of decades of service. Justice Stevens in 86. Justice Alito is 55.”

The Roberts and Alito victories “may turn out to be the highlight” of Bush’s presidency, Specter said.

A vacancy on Specter's mind
He added that a vacancy on the Supreme Court is “very much on my mind…. You cannot have an eight-person court, because that would result in lots of 4-to-4 decisions… It’s an eventuality we have to be concerned about.”

As Specter noted, Justice John Paul Stevens, appointed to the high court by President Ford in 1975, is 86 years old.

According to the National Center for Health Statistics, a white male, such as Stevens, who has reached age 85 can expect to live another six years.

In his rulings, Stevens has opposed much of what Bush advocates and so he may well be loathe to see Bush fill his seat.

The next oldest justice is President Clinton’s appointee Ruth Bader Ginsburg, who is 73.

Sen. Patrick Leahy, D-Vermont, who’ll be the chairman of the Judiciary Committee next year, has not made any commitment that Bush’s nominees will get a hearing and a vote from his committee.

Leahy did urge Bush this week to “work with us in charting a new direction… by choosing consensus nominees.”

But if “consensus” means general agreement or accord on a nominee acceptable to Leahy and Schumer, as well as to Specter and the Federalist Society, there’ll be none on staunch conservatives such as Alito.

Bush rankled Leahy this week by re-submitting a slate of nominee including some to whom Democrats vehemently object to.

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