The Democrats' capture of formal control of the Senate is bad news for President Bush's judicial nominations -- especially to the federal courts of appeals -- during his final two years in office. But don't be fooled by Democrats' bluffing. There's still plenty of room to get another excellent Supreme Court justice -- or even two or three more -- confirmed.
Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate -- Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.
A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified -- and nastier -- on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can't rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won't go unanswered.
Read the entire article on the Ethics and Public Policy website (new window will open).