VP Lieberman & DNC Silence on Judges

Amid press reports of John McCain notifying his running mate and Joe Lieberman rebuffing a request by Karl Rove to withdraw his name from VP consideration, RealClearPolitics concludes that “a lot of Republicans are nervous” that Lieberman is McCain’s pick. Republicans are concerned about Lieberman’s pro-choice stance and his weak record on judges. Since the abortion issue is almost entirely in the hands of the courts, Sen. Lieberman, if selected, could likely deflect much of the inevitable conservative criticism by making the following three pledges regarding judicial appointments:

1) he will play no role in picking judicial nominees in a McCain Administration,

2) he will not run for president in the future (and thus will never nominate judges himself),

and most interestingly,

3) he will caucus with Senate Republicans for the remainder of the year, allowing Republicans to demand a Senate reorganization like the one that followed Sen. Jeffords’ 2001 defection from the GOP. That would make Arlen Specter chairman of the Judiciary Committee and Mitch McConnell Majority Leader, likely resulting in the confirmation of four pending appeals court nominees to the all-important Fourth and D.C. Circuits. Senate Democrats would be unwilling to risk the fate of Tom Daschle by filibustering nominees so close to an election.

We’re not betting any money on Lieberman being selected and making pledges, but the possibility of a Senate reorganization is too enticing to ignore.

Meanwhile, we’ve been watching the Democratic Convention closely for indications of whether the Obama campaign will use the prospect of several Supreme Court vacancies, and the judges issue in general, to scare Hillary Clinton’s pro-choice supporters into the Obama camp. Based on the convention’s four major speeches so far – those of Biden, Warner, and Bill and Hillary Clinton – it looks like the campaign will try to avoid the issue, at least in front of mainstream audiences. Out of more than 8300 words in the four speeches, only seven words were devoted to the judges issue:

“Jobs lost, houses gone, falling wages, rising prices. The Supreme Court in a right-wing headlock and our government in partisan gridlock. … ” — Hillary Clinton, Aug. 26, 2008

The logical conclusion is that the Obama campaign, keenly aware that the judges issue has been a losing one for Democrats in recent presidential and Senate elections, has concluded that the issue’s risks outweigh its appeal to some Hillary supporters. Especially in light of Obama’s past pronouncements about the type of judges he would appoint, he’s got good reason to be concerned about alienating swing voters who – regardless of what they think about Roe v. Wade – worry about courts mandating gay marriage, nullifying the death penalty, treating religion as a communicable disease, and striking down protection against online pornography.

The silence on the judges issue was particularly notable in Sen. Biden’s speech last night, given that he is a member and former chairman of the Senate Judiciary Committee. If anyone has the credibility to promise he’ll fight tooth and nail for a pro-choice Supreme Court, it’s Biden, who led the fight to defeat Robert Bork and Clarence Thomas as Judiciary chairman. But last night, Biden may well have been loathe to remind the mainstream audience watching at home of his track record on judges. After all, Biden has done more than any other senator to transform the judicial confirmation process into the political circus it is today. Bloggers Paul Mirengoff and Donald Kochan aptly describe Biden’s leading role:

“As Chairman and member of the Senate Judiciary Committee, Senator Joseph Biden set the precedent for intensely political, antagonistic, and activistic opposition to judicial nominations regarding originalist, strict interpretivist, or conservative judges. This was accomplished not only in hearings – most notably for Robert Bork and Clarence Thomas – but also in ensuring many lower court nominations never received a floor vote.” — Donald Kochan

“Biden’s legacy, then, is a fully politicized system of confirming federal judges – one that will continue to produce ugly spectacles like the Bork and Thomas hearings [and] undermine respect for the judiciary.” — Paul Mirengoff

Finally, let’s examine Hillary Clinton’s assertion Tuesday night that the Supreme Court is “in a right-wing headlock.” As we said back in June,

“If a Court that grants habeas corpus rights to enemy combatants for the first time in history, and places more importance on elite opinion [about the death penalty] than the considered judgment of Louisianans about how to best protect their children, is too conservative, then what precisely do you hope a more liberal Supreme Court … would do?”

Kathryn Lopez made a similar point yesterday over at National Review Online . And as Stuart Taylor noted last month, after analyzing poll results,

“[C]onsider six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”