THE BIGGEST CONSEQUENCE of the midterm elections may well concern judges. Because the Republicans now control the Senate, President Bush is in a far better position than he was during his first two years in office to change the confirmation process for the better and to see his nominees confirmed.
For all of that, and it is a lot, Bush has himself mainly to thank. In case you wonder, he hasn't done that. His reluctance to take any credit for his party's capture of the Senate is a testimony to his political prudence. Yet when histories of the Bush presidency are written, his labors in behalf of Republican Senate candidates in 2002 may well deserve their own chapter, precisely because the outcome now gives him the upper and potentially pacifying hand in the judges' wars.
Not incidentally, in choosing to campaign as he did, Bush eschewed conventional political counsel, which holds that incumbent presidents lose seats in midterm elections and, therefore, shouldn't bother to waste political capital by hitting the trails. But there was Bush in his five-day sprint to Election Day, in which he flew 10,000 miles, touching down in no fewer than 15 states, Texas the last. And everywhere he went he talked about judges. Here, for example, was Bush in Missouri on Monday:
"And I'll tell you another big issue and another big difference in this campaign, and that has to do with our federal judiciary. I have a responsibility to name good people to the bench. I've named a lot of really good people . . . but the bunch running the Senate [i.e., the Democrats] has done a lousy job on my nominees."
Bush implied that the Senate needed to change hands for it to do a better job and appealed for votes for Jim Talent in his race to unseat the Democratic incumbent, Jean Carnahan. (Talent won.)
Bush addressed other issues during his stops--homeland security and tax cuts in particular. Without reliable national surveys to indicate whether and, if so, the extent to which judges mattered in a given race, it is difficult to assess the impact of the issue. And it bears noting that conventional political analysis holds that it is hard, if not impossible, for a president to make judges an issue in midterm elections. That analysis has persuaded some presidents not to even try.
Still, there are reasons to think that judges mattered to some extent, perhaps decisively, inasmuch as a mere 22,000 votes shifted the Senate to the GOP. And it may have mattered not just in the three GOP pickups but also in states the Republicans held, including Texas.
Republican political strategists say the issue aroused the party's base. Discount that if you like, but it is true that no issue is more likely to stimulate the rank and file of the Republican party than judges, which also work as a proxy for certain social issues (such as abortion). And there is this fact: More Republicans than Democrats did show up at the polls. In midterms, the party opposite the president's usually has the better turnout.
The opportunity on judges that Bush now has is evident. Six days before the elections, he endorsed two changes in the way the Senate handles nominations: first, that the Senate Judiciary Committee hold a hearing within 90 days of receiving a nomination, and second, that the full Senate hold an up-or-down floor vote within 180 days.
Such changes have merit regardless of which party controls the presidency or the Senate. The failure to hold reasonably timely hearings disrespects the president's power to nominate, and the Judiciary Committee shouldn't be allowed to act for the full Senate, especially since the full body might have confirmed a nominee that the committee, voting along purely partisan lines, rejected. (Recall the case of Priscilla Owen.) Significantly, Orrin Hatch, who will be the committee's new chairman, supports the Bush proposals.
As for his nominees, Bush will see them moved without undue delays through the committee to the floor. Most if not all will be approved. The Democrats, now in the minority, are down to the filibuster.
Ultimately at stake here are the role of the courts and the ways in which judges interpret the law. Bush hardly has hidden where he comes down on those matters. His is a conservative judicial philosophy. But what will enable him to advance his philosophy through his appointees is the remarkable campaign he waged, one that defied historical trends and usual political wisdom. It continues to be a mistake to underestimate George W. Bush.
Terry Eastland is publisher of The Weekly Standard.