The Magazine

Supreme Court Arithmetic

Conservatives should hope that Bush's next choice gets fewer than 58 votes.

Feb 13, 2006, Vol. 11, No. 21 • By FRANK CANNON and JEFFREY BELL
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IF PRESIDENT BUSH GETS TO make a third appointment to the Supreme Court this year, odds are he'll be filling a seat occupied by one of the court's five liberals. Their average age is 72, while the average age of the court's four conservatives is 58.

In that eventuality, you'll know something historic has happened if Bush's nominee gets 58 votes--or fewer.

In the current Senate, there are 54 Republicans--55 if you insist on counting Rhode Island's Lincoln Chafee, who voted against Samuel Alito and admits he didn't vote for the Bush-Cheney ticket in the 2004 election. Alito won the votes of those 54 Republicans, plus four Democrats who represent very, very conservative red states.

In a putative 2006 battle for the seat that will determine ideological control of the court, Ralph Neas of People for the American Way and the handful of other liberal lobbyists who call the tune for Democratic senators on judicial issues will undoubtedly exceed their impressive performance on the Alito nomination. The same lobbyists who enticed John Kerry down from the ski slopes of Davos, Switzerland, and got more than 90 percent of Senate Democrats to vote against a brilliant, articulate, universally respected conservative with 15 years of judicial experience, will undoubtedly do even better when liberals are in imminent danger of losing control of the High Court for the first time in 70 years. Neas may pick up one or two more Blue State Republicans and may even squeeze a couple of additional Red State Democrats into signing their own political death warrants.

In the high-stakes election year of 2006, Republican national chairman Ken Mehlman certainly hopes so. Mehlman is acutely aware that the single biggest factor that has given his party its current solid margin of Senate control is the politics of judicial confirmation. In the two election cycles since Bush became president, when Republicans went from minus two to plus ten in the Senate, a total of nine Senate seats switched hands from Democratic to Republican. Seven of these were in the South, and an eighth was the South Dakota seat of Democratic leader Thomas Daschle, the architect of Democratic judicial obstructionism in Bush's first term.

There are signs that brass-knuckled judicial battles are becoming a less than unalloyed Democratic blessing even in some socially liberal blue states. Thanks to Neas, freshly appointed New Jersey senator Robert Menendez last week found himself, in his maiden Senate speech, explaining why it would be a good thing to filibuster the nomination of an Italian American from New Jersey.

The truth is that age-old liberal hot buttons are growing stale. During the Alito battle, a 1985 job application memo was leaked in which Alito wrote that "the Constitution does not protect a right to an abortion." Neas leapt on the memo, telling an interviewer at the time, "I believe this will be seen as a catalytic moment, when senators and the public questioned what they knew about him." Neas was wrong on both counts. Senators on both sides had been aware for some time that Alito is a judicial conservative, and the already solid public approval of the nomination went up in subsequent polling.

Particularly striking was the quick collapse of a filibuster attempt by the Democratic leadership. A Democratic caucus that had held solid for the filibuster of multiple nominations to the federal circuit courts in Bush's first term could muster only 25 of the 41 votes needed to block Alito. It's now evident that last year's bipartisan "Gang of 14" led by John McCain, which at first appeared to preserve the Democrats' right of judicial filibuster, has instead delivered effective control of the Senate confirmation calendar to Majority Leader Bill Frist.

As a result, Senate Democrats' ability to hold the Bush vote count to 58 or below has stopped being a mortal threat to a competent conservative nominee. Indeed, the triggering of another ideological clash, coming deeper into the election year, is the best bet for Republicans to defy the odds and enjoy a third straight cycle of Senate gains in 2006.

So the thing for conservatives to hope for is 58 votes or fewer for the next Bush Supreme Court choice. A higher count than that will mean one of two things, both of them bad: Bush has picked the wrong person, or (far less likely) the Democrats have decided to stop Ralph Neas and his acolytes from digging them into an even deeper Senate hole.

Jeffrey Bell and Frank Cannon are principals of Capital City Partners, a Washington consulting firm.