Why the GOP Should Emphasize Judges

It is, oh, just about now that Republicans should say to themselves: Wish we had done more on judges this year. That would have reinforced a message they now need to construct: If the GOP loses the Senate, precedent shows that more than 60 Bush judicial nominees will never get even a Judiciary Committee hearing under the chairmanship of Sen. Patrick Leahy (D-Vt.). Republicans will be unable to stop a filibuster of a next Supreme Court nominee and countless circuit court picks. This will dwarf Democrats’ past six years of obstruction.

Is it too late to tell the voters? By failing to invest Senate time on judges this past year, Republicans ignored the political lesson of the Harriet Miers debacle: Supporters are forgiving on every issue so long as Republicans are solid on judges. That’s the kind of love GOP candidates need come Election Day. The Miers lesson corresponds to getting out the vote; supporters may be upset on other issues, or be otherwise unmoved, but they will come out and vote over the judges’ issue.

No, it doesn’t traduce into large numbers, though it could with effort. Prior to the 2004 election, polling showed that efforts to spotlight Democrat obstruction on judges, culminating in a 40-hour Senate debate in November 2003, had significantly grown public support for Republicans, 2-to-1. One study concluded that “a determined effort on the part of congressional leadership can shape public opinion” and that it was “possible for Republicans to use the permanently stalled, half-dozen judicial nominations to impress voters that Democrats are, at best, interested mostly in obstructing.”

And Republicans did just that, converting the judicial fight into a sweep of the South in 2004 and the defeat in South Dakota of Senate Minority Leader Tom Daschle. But even absent such effort, the “judges voter” can mean the margin of difference by which Republican senators win tough midterm races. That is, if voters are reminded what’s at stake.

In 2002, Republicans won three new Senate seats by the barest margins, giving them control of the Senate. The voter plurality that in 2004 would rank first and be called the “moral issues voter” ranked nationwide in 2002 only fourth. But in Georgia, Missouri, and Minnesota that year, in a midterm election where the President campaigned chiefly on taxes and terror, something unusual happened: self-identified single issue, pro-life voters came out to vote in a non-presidential year, who normally do not. The margin of their vote was larger than the margin of Republican victory.

How? After Democrats blocked a then-obscure judge from Mississippi, Charles Pickering, Sen. Rick Santorum (R.-Pa.) began polling over the judge issue. He discovered it impacted poorly on the Democrats’ image. He then found ways to expose the increasing obstruction, finishing, just two weeks before the 2002 election, with the ultimate spotlight: an East Room speech by the President.

The outcry invited voters to connect Democrat judicial histrionics with other issues over which values voters cared most. And they did. In 2004, they did it again.

This election year, instead of pressing Democrats in debate on blocked judges, Republicans chose to design a Senate “messaging” agenda that appealed to the suburban middle-class voter and to focus on national security, to show that Republicans, better than Democrats, keep us safe, and on health care and the economy. Unfortunately, they locked on this plan when they thought that they would, at most, lose two seats.

So what happened? First, GOP leaders failed to understand that the politics of judicial confirmations has changed; that it is no longer just another wedge issue framed by mind-numbing statistics. Republicans thought they could punch the card by pointing to the confirmation of two Supreme Court justices. But past accomplishment is a poor reminder of what’s still at stake. Ironically, they are unable to point to the two accomplishments for which “judge voters” should give them credit.

By threatening the “nuclear option” in 2005, Majority Leader Bill Frist (R.-Tenn.) removed the Democrats’ filibuster threat from President Bush’s consideration in choosing his Supreme Court picks. In Senate terms, it was a major investment of time and credibility. Yet conservatives still see the back-room machinations that resulted in the “Gang of 14” deal as a surrender of principle and a failure of leadership.

And, for many reasons, Republicans won’t tout perhaps their greatest single accomplishment in this Congress: that moment when GOP senators, one by one, examined their constitutional duty and forcefully advised a President to withdraw an untested nominee to the Supreme Court.

Second, Senate leaders ignored the advice of editorial boards, just about every conservative pundit and columnist, colleagues such as Sen. John Thune (R.-S.D.), and every conservative grassroots leader—everywhere, including me, each of whom warned that Republicans should do more to debate nominations in light of the coming election.

Showing the total disconnect, a week ago Republican National Chairman Ken Mehlman listed the judge fight as one of the three reasons he expected voters would vote for Republicans.

But Senate GOP leaders took instead all the wrong counsel. They placated centrist colleagues who told them that they were tired of the judge issue. They followed conservatives, from red states, who win elections with large margins. They bowed to Northeastern liberals who hear talk about a “base” like most of us hear talk about Mongolians. They heard colleagues who last ran for the Senate in 2000 when the conventional wisdom was still that the nominations issue was somewhere under campaign finance reform in the voter’s hearts.

And perhaps worst of all, they took the counsel of inside-the-box-thinking staff, for whom the judge issue is just a nuisance that takes up time from the work that the “Chamber right” lobbyists want out of them.

So is it too late for Republicans in close Senate races to remind voters of the judge issue? Last week incumbent Senators Rick Santorum and Jim Talent (R.-Mo.) pledged never to filibuster a judicial nominee and challenged their challengers to do the same. With Sen. Chuck Schumer (D.-N.Y.) guaranteeing supporters that Democrat Senate candidates such as Pennsylvania challenger Bob Casey will vote with liberals on Bush judges. No. It is not too late. Not yet.