Nomination imminent? News and analysis
on Oct 29, 2005 at 9:21 pm
Several news organizations were saying Saturday night that President Bush is expected to announce a new nominee to the Supreme Court either on Sunday or Monday, and that the President has narrowed the choice to two federal circuit judges: Samuel A. Alito, Jr., 55, of the Third Circuit in Philadelphia and J. Michael Luttig, 51, of the Fourth Circuit in Richmond. (As usual, the How Appealing blog is on top of these news developments.)
The choice of either of those two would signal that the President was more concerned about drawing his most conservative followers back into the fold than he would be about averting a major fight with Senate Democrats by putting forward a “consensus nominee.”
If either of those two is nominated (and some of the news accounts suggested that the final decision had not yet been made), Senate Democrats are expected to mount a vigorous opposition campaign.
Two recent changes in the dynamic of Senate review of Supreme Court nominations would be in play.
On the one hand, Republican senators who felt uncomfortable about the now-withdrawn nomination of White House Counsel Harriet E. Miers appear to be eager to return to the support of the President in filling the vacancy that will come with the planned retirement of Justice Sandra Day O’Connor. Loyalty to the President on this, particularly at a time when he is under siege in other fields, will have a strong pull for many in the GOP. Conservative organizations, without a doubt enthusiastic about either Alito or Luttig on the basis of thoroughly conservative records on the bench, will be ready to get their promotional machinery going again.
On the other hand, the conservative opposition to Miers, over the question of her judicial philosophy and her views on social issues, has given new legitimacy to a thorough Senate inquiry into the philosophical leanings of any new nominee. Democrats are expected to take full advantage of that opening, and their strategy will be threefold: first, to probe deeply into the jurisprudence each judge has applied on the bench in order to prepare searching questions of the nominee; second, to convince their own moderate to conservative Democratic colleagues that either Alito or Luttig will endanger civil liberties so the 44 Democrats must stand together in opposition, and, second, to persuade moderate Republicans — particularly from New England — that either Alito or Luttig would help steer the Court sharply to the Right, in ways that those Republicans’ constituents would not like. The Democrats could not stop either nomination without Republican support.
Looming questions are whether the Democrats will mount a filibuster, whether that would cause them to lose some of their own more conservative members who are uncomfortable with judicial filibusters, and whether the Senate’s Republican leadership would try to force through a new rule forbidding judicial filibusters — invoking the so-called “nuclear option” that probably would bring the Senate to a standstill.
If the Senate approved Alito or Luttig, either probably would become closely aligned on the Court with Justices Antonin Scalia and Clarence Thomas. Since either of them is probably more conservative than Chief Justice John G. Roberts, Jr., and definitely more conservative than Justice Anthony M. Kennedy, it would remain uncertain whether a solid new five-Justice majority would form to achieve the goal of the President and his conservative followers to bring about what might look very much like a conservative judicial revolution.
If the new nomination does come swiftly, it is expected that Senate Judiciary Committee hearings would be set to begin in early December.
