Roberts, Alito, and the Gang of 14

Steve Bainbridge argues that the easy confirmation of John Roberts as Chief Justice and the seeming certitude that Samuel Alito will soon replace Sandra Day O’Connor on the Court is a big victory for the RINOs.

Bush’s declining popularity and the start of the 2008 presidential race any day now will leave Bush a lame duck, which in turn means that SCOTUS appointments likely will be the only major legacy of Bush’s second term. This is precisely why those of us who opposed Harriet Miers were right to do so. It was a fight that had to be waged and won. In winning, we forced Bush to take back an unqualified crony with suspect conservative credentials and replace her with an eminently qualified jurist with a solid conservative track record.


While it is too early to declare victory, the conservative opponents of the Gang of 14 deal (some of whom were Miers biggest proponents) do have some egg on their faces. After all, we got Alito through, and preserved the filibuster for possible use in the future. I’d call that a win-win.

As one who opposed both the Gang of 14 and Harriet Miers, I concur in part and dissent in part.

First, the confirmation of Roberts to replace the late Chief Justice William Rehnquist was almost a foregone conclusion. He was simply too accomplished, smoothe and free from a controversial paper trial to have been a candidate for a filibuster. The fact that he represented a net move to the left for the Court compared to Rehnquist made that even more true.

It’s not inconceivable that the deal made by the Gang of 14 helped get Alito through (assuming that the conventional wisdom holds and he actually gets confirmed) but it’s far from a given. The fact that the Democrats allowed the deal to go through was an indication that they realized that filibustering obviously qualified, mainstream conservative nominees would backfire. If they refrain from filibustering Alito it will not be because seven of their caucus signed a deal but because they do not think they can get away with it politically.

The deal will remain in force only so long as that is true. All it takes to break is the declaration that a given nominee is an “exceptional circumstance” and the ability to keep 41 members of their caucus in line to keep a filibuster going.

In exchange for getting the right to exercise their power as the democratically elected majority of the United States Senate and hold a vote, the Republicans sacrificed several highly qualified lower court nominees for the Courts of Appeal. That may have been the right thing to do, in that the Democrats could certainly have tied up the Senate in retaliation for the GOP ramming through a rules change on the filibuster.

FILED UNDER: Congress, Law and the Courts, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.