Which Supreme Court Nominee Could Win Every Senator’s Vote?

Conservative lawyers Wendy Long and Stephen Presser debate the topic “Who Could Win Every senator’s Vote?” at Legal Affairs Debate Club. They’re convinced, as I am, that no judge who’s even remotely conservative could accomplish that feat.

Long argues,

Before President Reagan’s nomination of Judge Bork in 1987, the generally accepted criteria for Senate confirmation were legal and judicial qualifications and integrity. “Judicial philosophy” was left to the President’s discretion, as the Framers of the Constitution intended. The President, as the only elected representative of all Americans, is the one who should make that choice. It’s what the Constitution empowers him, and the people elect him, to do.

But the Democrats changed the ground rules for nominations with Judge Bork. The Left’s continued failure to persuade the American people of the merits of their ideology, and their corresponding losses at the ballot box, has resulted in the Left being even more dependent on a compliant judiciary than it was 18 years ago. So liberal pressure groups, and the Senate Democrats they control, will oppose any nominee who shares the President’s judicial philosophy.

Certainly, post-Bork, the Republicans have done much the same thing when they’ve controlled the Senate and had a Democratic president, i.e., during the latter years of the Clinton Administration.

Presser expands on this analysis, adding,

What’s happened is that the “legal realists,” working in the shadow of Oliver Wendell Holmes, Jr. have finally become the most influential judicial philosophers, and, as a result all academics, most lawyers, and certainly the leading Democratic Senators now all believe that law is just politics operating at a different level, judges have the freedom to implement the policies they please, and thus it’s crucial to pick judges who will implement the rulings one prefers—for the Democrats at this point rulings that favor affirmative action, abortion, and the removal of religion from the public square. The Republicans find themselves in the interesting position of being able to promote the policies they favor—for example a color-blind constitution, allowing the states to regulate abortion, and undergirding law with religion—by pushing for the appointment of judges who will more narrowly construe the constitution according to its original understanding (the traditional perspective argued in the Federalist and other works of the framers). Thus, for the Republicans, they can successfully argue that the favor judges who don’t make law, and still implement the policies they believe are appropriate.

Quite right.

About a month ago, liberal lawyers Arkadi Gerney and Carl Tobias took a stab at the same question and came up with some names. To do so, however, they had to essentially skirt the first of the requirements that they be “approved by conservatives, lauded by moderates, and acceptable to liberals.”

A good place to start is with two judges President Bush nominated to the Circuit Courts in his first term: Ed Prado (5th Circuit) and Barrington Parker Jr (2nd Circuit). Both are respected moderates.

There’s also Judge David Ebel, a Reagan appointee to the Tenth Circuit and a former law clerk to Supreme Court Justice Bryon White whose jurisprudence resembles that of his mentor.

How about Judge Ann Williams of the Seventh Circuit? Nominated to the District Court by the first President Bush and elevated by President Clinton, Judge Williams is a moderate who would be the first African-American woman on the Supreme Court.

So, it would be possible to find a David Souter-type judge who had been appointed by a Republican but then subsequently disappointing to Republicans.

Clearly, the days when an Antonin Scalia could get 98 votes (with none opposing) are gone.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Sure. A majority of a few votes should enable the President to nominate and the Senate to affirm some of the worst judicial candidates ever nominated–otherwise it’s the Democrat’s fault, owing to Bork.

    Patricia Owens? A judge so far to the right that Alberto Gonzales accused her of jamming her ideology into the law? A Republican who was often a minority of one on a bench dominated by Republicans?

    An elected judge who has never found for the rights of an individual against a corporation or business? Not once.

    He nominates people like that, thousands if not millions of people howl in protest, and it’s the Democrats’ fault?

    The majority of Americans support a woman’s right to choose; winning a presidential election and having a small majority in the Senate doesn’t mean Bush can keep nominating vociferously pro-life candidates and expect everyone to just go along with it.

    Let’s be clear: he’s not nominating the status quo, he’s nominating to change the law of the land and rescind a right that women have now. To remove an existing right.

    So if the Democrats win the executive and a small legislative majority in 2008, you’ll approve if they set about removing the right to bear arms? I doubt it.

    The founders intended that the minority would have a voice; that’s one reason for the filibuster. You got a huge majority, go nuts. But absent that huge majority, a small majority is not entitled to simply steamroll everything they want through, especially when they seem unable to come up with any laws that aren’t written by corporate campaign donors.

    Or were the people in your neighborhood clamoring for tighter bankruptcy laws and a medicare giveaway to pharmaceutical companies?

    Were they screaming for a law to protect one poor vegetative woman in Florida? Were they?


  2. Maniakes says:

    The majority of Americans support a woman’s right to choose

    What’s your source on that? Zogby International, hardly a right wing polling agency, found that by a 53-36 margin Americans agree with the statement “Abortion destroys a human life and is manslaughter.” 58% feel that “abortion, when the mother’s life is not in danger” is morally unacceptable.

    So if the Democrats win the executive and a small legislative majority in 2008, you’ll approve if they set about removing the right to bear arms?

    RKBA is explicity guaranteed in the constitution. The “right to abortion” was read into it 190 years after the fact. Regardless of whether a moral right to abortion exists, or whether a legal right to abortion is desirable, a Supreme Court decision overturning the second amendment would not be directly parallel to a Supreme Court decision overturning Roe v. Wade (Planned Parenthood v. Casey, actually, which superceeds Roe v. Wade).

  3. I think Editor is right about the abortion polling numbers — the pro-choice position has more support. Rather than cite any one poll, let me just direct you to Pollingreport.

  4. Maniakes says:

    Thank you for the additional data. It appears my conclusion was wrong (or at least incomplete). That’s what I get for stopping once google turns up one set of numbers.

    There’s a fair amount of variation in that data, which if you look at how the wording of the questions affects the breakdowns can probably be explained by the large contingent who don’t fall cleanly into strict “pro-life” (no abortion at all) or strict “pro-choice” (abortion on demand).

    The sense I get from those polls is that most people want abortion to be legal at least very early in pregnancy, and at least when a major extenuating circumstance exists (such as the pregnancy being the outcome of rape, or the fetus having severe congenital defects, or the pregnancy being dangerous to the mother), but also a majority strongly dislikes abortion and would like to see significant restrictions on it. But a lot of people seem to be hazy on where they want to draw the line.

  5. The point is whether a president should be trying to affect highly controversial changes in law through judicial appointments on the basis of a few votes in the Senate. Which is what he’s doing.

    The founders never intended that when they created a system of checks and balances.

    Your example proves the point. We have a difference of opinion on whether certain rights were “explicitly stated” or “read into” the Constitution. The courts decide. Would you quietly permit me to reverse one and promote the other through judicial appointments on the basis of a slim majority in the Senate? To ignore popular support (for either), ignore a filibuster, and resort to recess appointments?

    You’d support that? Dems win the presidency and a slight Senate majority in 2008 and bye-bye right to bear arms? We nominate Noam Chomsky for a Federal bench and you’ve got no problem with that?

    All I’d have to do is get poll results for the question, “Do you think it’s a good idea that automatic weapons can be used to murder children at school?”

    What’s really going on is that a small but vocal extremist minority has taken over the Republican party and through it the government. If you need any proof of that just look how they attack anyone–even their own–who stray from the ideology even a bit. Souter, Kennedy, etc. Judge Greer in Florida makes exactly the right decision on the Terri Schiavo case and the party hacks go ballistic. He gets tossed from his church, gets death threats, etc.

    As if somehow these are bad judges because they are judicial and not mere party organs.

    Or how’s this: The Senate minority continues to reject Bolton, and the White House spokesman says “clearly the Democratic leadership isn’t interested in compromise”. Nice. So a “compromise” means “give us the guy we want and shut up” as opposed to say, nominating someone less controversial. Now that’s reasonable. A guy who chases a woman down a hallway throwing things at her because she wouldn’t fudge a report for him. Nice compromise.

  6. Kent says:


    You write too well for me to believe that you really believe much of what you are saying.

    The Supreme Court has already effected massive changes to American law without reference to Congress. Most of these changes have favored liberal policies. You know this perfectly well. Given that judicial activism has become a political reality, the question becomes how to respond to it.

    I don’t think the Founders anticipated this. In fact, your appeal to the Founders rings a little hollow. Are you really advocating a doctrine of original understanding?

    As for a “small but vocal extremist minority” taking over the Republicans: Howard Dean. Michael Moore. George Soros. Need I go on?

  7. Maniakes says:

    No, Kent, he’s right about SCOTUS. In practice, the constitution means what SCOTUS says it means. I don’t like it, but that’s the way it is.

    As a consequence, appointing textualist/originialist justices who will stick closely to the actual text of the constitution is an act with potentially far-reaching political consequences. Beyond abortion, we’re talking about the potential for 70+ years of commerce clause jurisprudence being overturned, effectively repealing a large portion of the New Deal and subsequent regulations.

  8. I do write very well, you’re right. And I believe the founders did not intend a slim majority to be able to wreak massive changes in direct opposition to a large minority and popular opinion. In fact, if you think about, every time that’s happened it’s been a disaster.

    The issue at hand isn’t about the role of the court, it’s about the rights of the minority and the President’s nominees.

    As for extremist, I suppose Soros’ view on the legalization of drugs is out of the mainstream–though it’s a common libertarian view with a long history in society–but can you name one other view of his that’s extremist?

    Or even one view of Howard Dean’s that’s “extremist”? Isn’t he pro gun?

    N.B., opposing the war in Iraq or President Bush’s foriegn policy is not de facto “extremist”. Slandering a husband and countless judges, and writing a specific law to keep one vegetative woman alive against what the entire judicial system found was her will on the basis of the phrase “err on the side of life”, however, inches mighty close to it.

  9. Skeptic says:

    “I believe the founders did not intend a slim majority to be able to wreak massive changes in direct opposition to a large minority and popular opinion. In fact, if you think about, every time that’s happened it’s been a disaster.”

    Yeah, that Brown v. Board of Education case didn’t really turn out so well, did it? And we all know what a disaster Roe v. Wade turned out to be.