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September 29, 2005
Now The Real Swearing Begins

John Roberts won confirmation to the Supreme Court as Chief Justice on a strong but hardly unanimous vote in the Senate, 78-22. Half of the Senate Democrats voted against his confirmation, including the arguable front-runner for the 2008, Hillary Clinton; half of them voted to confirm him, including most of the red-state Democrats like Robert Byrd (WV), Bill Nelson (FL), Ben Nelson (NE), and Kent Conrad (ND). The politics finally ended when Roberts went to the White House to take the oath of office in time for his first official day on the job next Monday.

However, that only starts the swearing, as both sides prepare for a nastier battle the second time around:

"The pivotal appointment is the next one," said Sen. Dianne Feinstein (D-Calif.), who opposed Roberts. "The comparison obviously is with O'Connor," she said, in contrast to the reliably conservative Rehnquist. Asked how much she feared that Bush will name someone more conservative than Roberts, she replied: "Very. On a scale of one to 10? Eight and a half."

Republicans said the next nominee should be held to no higher standard than was Roberts, suggesting that the new chief justice has blazed a path others can follow. "Every single judicial nominee deserves to be considered on his or her own merits and not juxtaposed with their predecessors or horse-traded for ideological reasons," said Sen. Jon Kyl (R-Ariz.). ...

"If it's an ideologue such as a Janice Rogers Brown or an Owen," said Sen. Charles E. Schumer (D-N.Y.), mentioning another once-filibustered judge, "I think there's a good chance that we would move to block it on the floor" with unending debate.

Numerous Republicans have said an effort to filibuster a Supreme Court nominee chosen by a twice-elected president would be foolhardy. If necessary, some said, Republicans would revive their plan to change Senate rules and bar judicial filibusters.

While the O'Connor seat presents a bigger target for the Democrats, it still has its drawbacks as a line in the sand on judicial confirmations. Some Democrats might find themselves foolish enough, or partisan enough, to initiate a filibuster fight over a Priscilla Owen or Janice Rogers Brown appointment to replace O'Connor. We know 22 of them will oppose almost anyone appointed by George Bush, but some of the other 22 have elections to face next year, and cannot afford to make themselves look like obstructionists in states that have supported Bush twice.

But one factor that the Democrats have to keep in mind is that George Bush has three more years in office, and the GOP is likely to retain control of the Senate for all three. The Democrats have to defend more seats in the 2006 election and have more red-state incumbents than the GOP have blue-state incumbents. Why is that important?

John Paul Stevens.

O'Connor may have sometimes provided a swing vote, but overall the best Democrats can say about O'Connor is that she didn't turn out to be as conservative as they feared in 1981. She mostly represents the GOP's home turf. They will make a hue and cry about maintaining her moderation on the court, but they cannot afford to lose the filibuster over O'Connor.

John Paul Stevens, on the other hand, is 85 years old and not getting any younger at all. Stevens provides one of the most reliable of the liberal votes on the Court these days, and they have to have all the weapons available in case he retires or passes away. He remains in good health at the moment, but the chances of him staying that way for another three years aren't high enough for the Democrats to throw away the leverage they need to protect his seat if it comes up for replacement during a Bush term, regardless of the reason.

The Democrats will threaten a filibuster, and some of them may get insane enough to try one. However, unlike the lower-court filibusters, the GOP will not hesitate to pull out the Byrd option this time, and the Democrats will not risk everything to split the difference between a Janice Rogers Brown and an Antonio Gonzalez. That's why Bush needs to act boldly to name a solid conservative to replace O'Connor now.

Expect an announcement tomorrow, during prime time. Bush already has his pick, and he will want to force the coverage to come over a weekend. By eight-thirty tomorrow evening (ET), I think we will know who Bush has lined up for O'Connor's spot on the bench.

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Posted by Ed Morrissey at September 29, 2005 9:02 PM

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