THE LEGAL LEFT IS DANGEROUSLY close to winning the political war it has been fighting against the Bush administration over the future direction of the federal courts. The evidence of this is that whenever rumors are floated of possible Bush Supreme Court nominees, there are some very prominent conservative names that aren't mentioned, though they should be.
The eminently qualified conservatives Democrats have quashed include Miguel Estrada, who is Hispanic, Janice Rogers Brown, who is African American, Bill Pryor, a brilliant young Catholic, and two white women, Priscilla Owen and Carolyn Kuhl. By keeping these five nominees off the federal courts of appeals, Democrats seem to have blocked Bush from considering them for the Supreme Court.
When George W. Bush became president in 2001, the legal left and the Democratic party rallied around the slogan "No more Clarence Thomases." By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men.
This is what is at stake in the fight that rages now over whether the filibuster of judges gets abolished. Leading Democratic activists like Bruce Ackerman have called on Senate Democrats never to allow another Antonin Scalia or Clarence Thomas on the Supreme Court. If they succeed in establishing the proposition that it takes 60 instead of 51 votes to get on the Supreme Court, conservatives can forget about ever again appointing a Scalia or a Thomas.
Some Republicans have explored the idea that maybe a compromise is possible with the Democrats whereby Bush's court of appeals nominees are allowed through but the power to filibuster judicial nominees is retained. This would be a bad deal because the fight over the filibuster was always a fight about the future direction of the Supreme Court, and as long as the device is retained, it will be trotted out against any clearly conservative Bush Supreme Court nominee. It is time to drive a stake through the heart of the filibuster of judges.
Senate Democrats also reportedly proposed a "compromise" of their own: Filibusters against Thomas Griffith and William Myers, nominated for the D.C. Circuit and Ninth Circuit respectively, would be dropped if Republicans would withdraw the nominations of Janice Rogers Brown and Priscilla Owen. But this bad deal just shows how afraid Senate Democrats are of Brown and Owen.
Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women. The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.
Conservative African-American, Hispanic, Catholic, and female judicial candidates also drive the left-wing legal groups crazy because they expose those groups as not really speaking for minorities or women. They thus undermine the moral legitimacy of those groups and drive a wedge between the left-wing leadership of those groups and the members they falsely claim to represent.
Take Janice Rogers Brown, who won reelection to her state supreme court seat with a stunning 76 percent of the vote in one of the bluest of the blue states, California. Or take Priscilla Owen, who won reelection to the Texas Supreme Court with a staggering 84 percent of the vote in Texas. It is Brown and Owen who represent mainstream opinion in this country--not the Senate Democrats who have been using the filibuster to block their confirmation to the federal bench. If Brown or Owen were nominated to the Supreme Court, the record suggests she would win the ensuing national contest for hearts and minds. Best of all for conservatives, Senate Democrats would be forced by their left-wing interest groups to go down fighting these popular minority and female nominees. At a bare minimum, Republican Senate candidates would acquire a great issue for 2006.
Thus the driving force behind the Democrats' filibuster of conservative minorities and women is political--driven by a desire to protect the party's advantage with minority and women voters and cater to left-wing interest groups. Democrats are also driven in part by their odd belief that "real" African Americans and Hispanics and women cannot be conservative.
The filibuster of judges has crippled the Bush administration's efforts to appoint judges like Scalia and Thomas to the federal courts of appeals. Take the D.C. Circuit--a federal appeals court that all agree is second in importance only to the Supreme Court, and a grooming place for future Supreme Court nominees. In his eight years in office, Ronald Reagan appointed Robert Bork, Antonin Scalia, Kenneth Starr, Laurence Silberman, James Buckley, Stephen Williams, David Sentelle, and Douglas Ginsburg to this all-important court. Five years into his presidency, George W. Bush has appointed only a single judge to that court, John Roberts. The score on the D.C. Circuit is Reagan eight, Bush one--thanks to Senate Democrats and the filibuster.
The story on the D.C. Circuit is being repeated on federal courts of appeals all over the country. As Reagan and Bush-senior judges retire, their spots are being filled by those GOP nominees who are "acceptable" to Senators Charles Schumer and Dick Durbin. It is a safe bet that it is the future Scalias and Thomases who are being kept off the courts, not the future Anthony Kennedys and Sandra Day O'Connors.
It is impossible to exaggerate just how important the upcoming vote on abolishing the filibuster of judges really is. For 214 years of our history, there was not a single filibuster of a judicial nominee who had the support of a majority of the Senate. Before 2003, there was never once a filibuster of a lower court judicial nomination. Today such filibusters have become commonplace, and they will become positively routine if filibuster reform fails to go through. The stakes for conservatives could not be higher.
Steven G. Calabresi is George C. Dix professor of constitutional law at Northwestern University.