Food for thought: George W. Bush nominates, oh, lets hypothetically say Robert Bork, to replace Sandra Day O'Connor. Big fight ensues in the Senate, with Ted Kennedy, Joe Biden, Chuck Schumer and others staging a near war to keep the nominee off the court.
Lets look at the potential outcomes and see what everyone thinks the potential results could and would be.
First, lets say that the Robert Bork type nominee survives the fight (if any) and gets on the court. What are the implications for the 2006 mid-term elections? Because of the bruising Supreme Court nomination process, and the behavior of the liberals (primarily Democrats) in the Senate, the electorate from the Republican side gets all fired up and makes a major push at the polls to punish the Democrats. 2 - 3 more seats change hands, and the Senate comes back with an even bigger Republican majority that will help push forward even more conservative, and even more "right wing" nominees -- nominees that are clearly anti-Abortion, pro-religion, and other favorite causes of the "right".
Even if no major changes (abortion isn't outlawed, affirmative action isn't scrapped, no additional powers are given to the police and law enforcement agencies, etc.) come from any decisions by the nominee and the newly constituted court, the fight over the nominee will have changed the political scene for the forseeable future.
But consider the other possibility -- lets say that the Robert Bork type nominee comes onto the court and the first decision that is handed down is a partial roll back of Roe V. Wade that starts to put restrictions on abortion. Or, alternatively, lets say that the decision is one that tosses out Affirmative Action completely. Either way, liberals are highly motivated and show up in droves for the next election. Conservatives in battleground states lose their seats, and instead of a 56-44 majority, the GOP finds itself with a 51-49 margin, if not worse.
Which is the more likely scenario?
In my mind, the second scenario (a ground breaking decision) is the lesser possibility. Why? Several reasons. First, it's highly likely that even if the hardest right wing nominee were named and made it onto the court, they would be the most junior member of the court, and even if somehow Scalia or Thomas were elevated to Chief Justice, the court will most likely proceed slowly and cautiously on major decisions as they would not necessarily want to immediately "rock the boat" among the electorate. Lifetime appointment or not, I have to think that a future court would still proceed as it has lately, slowly and somewhat cautiously. Even if the majority might wish to take on some major cases, there would still be the liberal side of the court that would take every available tact to keep the court from taking up cases that might go against their desired results. It's happened for years, and I expect it would continue. Just like the Senate and Congress in general, politics is politics. There'd still be many deals made that kept cases from coming up.
But the first scenario, that of a continued "backlash" at the polls for liberals that stage a big fight over nominees is one I believe could seriously happen, which, to go on even a bit further, is something I think liberals must be cautious of.
First, to tip my hand a bit, even though I have absolutely no personal knowledge of George W. Bush's potential choices, I have long held the thought that George W. Bush is very much like his father. He's a sheep in wolf's clothing. Oh, he could perhaps be called a warmonger. He's had "the neocons" influencing his decisions on Iraq and in other areas, but in reality, most reasonable individuals would have to look at what we've gotten with Bush and perhaps grudgingly acknowledge that he's been pretty much a moderate. Yes, he's tossed a few bones to "his conservative base", with nominees for Appeals Courts like Janice Rogers Brown, Pickering, and others. But again, if not for the massive smear campaign by the left, most of those nominees wouldn't even merit a blink, much less the major concern and grief they caused the liberal base. Accused of being racist, supporting big businesses, of being ready to roll back personal rights, and and of being out of touch with mainstream America, nothing has been further from the truth.
But, lets say I'm wrong about Bush. George W. really is a hard-line conservative guy, and he wants to put extreme right wingers on the Supreme court. If the liberals stage the big fight over the next nominee, and the results are as my scenario lays out, then they will be handing a big victory to W., even if they win the battle. Not just to W., but to right wing of the conservative party in general. More seats taken by the GOP, especially if those future seats are right leaning, rather than "moderate" or "left leaning", means that the more conservative part of the party will smell victory, and they'll be able to ram any result down the throats over any potential objections. The liberals will become just a footnote. A squeaky voice that speaks up and complains of being shutout of the decisions and never being consulted. But then why consults losers that are in a clear minority?
Such is the danger that faces the liberals in the Senate. Demagogue and demonize the nominee. Try to filibuster them, perhaps even to the point of triggering the nuclear option in the Senate. But at the same time, inciting even more voters to show up and be motivated to prevent such problems in the future. Yes, it might bring more liberals to the polls, but something this last election should have shown is that the liberal party is becoming a true minority party that wins only when the "moral majority" types don't show up at the polls. Even going back to Reagan's time, it's clear that when the "moral majority" (or "silent majority") gets off their hands, they can and do influence elections.
The question is just how much motivation the coming nomination fight does and for whom.
Comments welcome!
