For weeks, commentators have speculated that significant numbers of conservatives, alienated by over-spending, the Iraq War, and other perceived GOP disappointments, will stay home on Election Day, giving one or both Houses of Congress to Democrats. But for those who care about reforming the Supreme Court, sitting this one out may soon look like a mistake of historic proportions.
For the past several weeks, there has been a rumor circulating among high-level officials in Washington, D.C., that a member of the U.S. Supreme Court has received grave medical news and will announce his or her retirement by year’s end. While such rumors are not unusual in the nation’s capital, this one comes from credible sources. Additionally, a less credible but still noteworthy post last week at the liberal Democratic Underground blog says, “Send your good vibes to Justice Stevens. I just got off the phone with a friend of his family and right now he is very ill and at 86 years old that is not good.”
Normally, this news might be too ghoulish to repeat publicly. Nevertheless, with the election just days away, it is news that should be considered. It points out what could be a once-in-a-lifetime chance for the 20-year movement to recast the court with a constitutionalist majority. It would be a cruel twist indeed for conservatives to “teach Republicans a lesson” next Tuesday, only to be taught a lesson themselves within months when new Senate Judiciary Chairman Patrick Leahy (D.-Vt.) leads a Democratic majority against the most important Supreme Court nominee in decades. Conservatives whose mantra is “no more Souters” should bear in mind Robert Bork’s fate after the Senate changed from Republican to Democratic hands in 1986.
The rumor should focus the mind not only on whether the Senate will remain majority-Republican, but by how much. In 2005, Senate Majority Leader Bill Frist (R.-Tenn.) was able to force Democrats to abandon filibusters of numerous Bush judicial nominees by threatening use of the Constitutional Option, which would have ended such filibusters. Democrats threatened to “go nuclear” in response, shutting down Senate business. Instead, a face-saving deal was reached in which moderate Democrats agreed to drop the filibuster, effectively paving the way for the filibuster-free confirmations of John Roberts and Sam Alito.
With 55 Republican senators, the majority needed for the “constitutional option” was never a sure thing. But with significant Republican losses on Tuesday, it will surely be buried, leaving Senators Teddy Kennedy (D.-Mass.) and Chuck Schumer (D.-N.Y.) free to return to filibusters, including against Supreme Court nominees. Schumer is reported to have assured Democrats that Bob Casey Jr. — despite running as a moderate Senate candidate — would be supportive of Democratic efforts to block constitutionalist judicial nominees. “There’s no worry on judges,” said Schumer. “And judges is the whole ball of wax.” Other supposedly centrist Democratic candidates including Harold Ford Jr. (Tenn.), Jon Tester (Mont.) and Jim Webb (Va.) have refused to rule out filibusters against judicial nominees.
Even if the rumor turns out to be unfounded, it is worth repeating because it crystallizes the reality that there will soon be another high court vacancy. Senators elected next Tuesday to six year terms will, assuredly, vote on the confirmation of at least one new Supreme Court justice before their term is out.
This week in Indiana, Montana, and Nevada, President Bush raised judges as a key reason to elect Republicans to the Senate. By all accounts, it has been and continues to be a favorite applause line among Republican crowds. Judicial confirmations were key to tight Senate races in 2002 and 2004. Conservatives should not forget the issue this Election Day, when the victory of a generation may be at last within their grasp.