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In Re: Supreme Court

What the 2004 election election means for the judiciary.

6:00 PM, Sep 2, 2004 • By TERRY EASTLAND
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New York

I WENT TO A DEBATE yesterday at the Marriott Marquis in Times Square where the people you most wanted to hear from weren't on the program. The subject was the vexed one of the nomination and confirmation of judges, and Boyden Gray and Victoria Toensing, both lawyers in private practice in Washington, argued from a pro-Bush, Republican perspective. Nan Aron of the Alliance for Justice and Betsy Cavendish of NARAL Pro-Choice America from the point of view of the Democratic minority in the Senate.

As everyone knows, Senate Democrats have raised the ante in the judges' wars by filibustering nominees to the appeals courts. No Senate minority had ever done that, and the number of Bush circuit nominees blocked by Democratic filibustering is now in double digits, at 10. The Democrats have demonstrated that they can filibuster any nominee (including, in a second Bush term, a Supreme Court nominee) any time they like. They have effectively imposed a supermajority requirement on the confirmation of judges, since 60 votes are needed to break a filibuster and allow an up-or-down vote.

Senate Republicans, however, are not exactly powerless, and for more than a year now the central question regarding the confirmation of judges has been whether they would attempt a rule change that would facilitate a simple majority vote on judicial nominees. Not all of them are eager to sign onto that project, and yet it is clear that there is not even a chance of effecting such a rule change unless just about every Republican is willing to get behind the effort.

Susan Collins and Olympia Snowe of Maine, and Lincoln Chafee of Rhode Island are the holdouts. Arlen Specter may be one, too. They've not said much publicly about the issue, yet if the Republican leadership tries to press for a rule change this fall, as one aide to a GOP Senator told me is likely, they'll be the Senators to watch.

Gray, a veteran of the judges' wars who served as White House Counsel to "41," as he typically refers to George W. Bush's father, said during the debate here at the Marriott, which covered well-trodden terrain, that Republican Senators have nothing less than a "duty" to respond to the Democrats' unprecedented filibustering by effecting the rules change. Do Collins, Snowe, Chaffee, and Specter agree with that assessment, or not? Right now, that's the most important question you can put to Senate Republicans about the judges' wars.

And there is a question for Kerry, too: If he's elected President and faces a Republican minority, what will he do if the Republicans decide to copy the Democrats and filibuster his nominees? I asked Aron and Cavendish how they'd counsel President Kerry in that circumstance, and also how they'd counsel the Democratic majority. But they didn't answer the question, other than to say Kerry should nominate people like Ruth Bader Ginsburg and Stephen Breyer and then "fight as hard as you can to get them confirmed."

I asked Gray how he'd advise Bush if he is reelected, the Republicans hold the Senate, and Democrats keep on filibustering. My whimsical solution is for Bush to find retired lawyers willing to serve as recess appointees and just starting appointing them, maybe asking one to clerk for the other during his "term" and then to appoint the clerk as the judge and ask the now former judge to be his clerk. Gray rejected the idea of resorting to recess-appointing, as I knew he would. He came back to changing the Senate rules so that you don't need a supermajority to get a judge confirmed. This debate is going to be continued, in the Senate.

Terry Eastland is publisher of The Weekly Standard.