November 12, 2006

Prospects in the Democratic Senate

In today's New York Times, Neil Lewis opines that "the impending Democratic takeover of the Senate . . . will produce a vast change in . . . President Bush’s effort to shape the federal bench with conservative judicial nominees." While there will certainly be a significant change, especially with regard to a possible third Bush Supreme Court nomination, "vast change" is almost surely an overstatement, as Ed Whelan has noted.

Given the very slow and uncertain road traveled by the President's conservative circuit court nominees – particularly in the 9+ months since Justice Alito was confirmed – it is hard to imagine a dramatic change for the worse. For example, though Lewis is likely correct that the nominations of Haynes, Myers, Boyle, and Wallace are "doomed," that is not much of a change from the pre-election scenario, as anyone who observed the lackluster effort by Republicans in recent months knows.

Apparently, Democratic stalwart Ron Klain has not been a close observer of the judicial nomination scene, given his assertion that "the Bush administration has played the game of judicial selection very hard and very far to the right for the past six years with little moderation." Even if one plays along with the Democrats' game of applying political labels to judges who believe in judicial restraint, at least half of the President's nominees to the appeals courts have been moderates who inspired little or no Democratic opposition.

Lewis is similarly out of touch with reality when he claims that "the administration had a no-lose situation in naming staunch conservatives to the bench: their choices would either be confirmed or their defeat would provide a strong campaign issue." If so, what explains the large number of moderate nominees and the low profile of the judges issue in the just ended election campaign?

(cross-posted at ConfirmThem)