From Edward Whelan at the National Review Online,
“The Next Supreme Court Vacancy: There’s plenty of room to confirm another strong justice.”

If a Supreme Court vacancy unexpectedly develops this summer, the conventional wisdom is that President Bush will find it extremely difficult or impossible to get a strong proponent of judicial restraint confirmed by the Senate. Now that Senate Democrats are in the majority, the thinking goes, they can easily defeat any judicial conservative, especially if the nominee is replacing one of the five justices who are consistent (Stevens, Souter, Ginsburg, Breyer) or frequent (Kennedy) votes for liberal judicial activism. Look, after all, at how they’re now able to block the President’s lower-court nominees whenever they want to.

This conventional wisdom is unsound. Briefly put: Under long-established Senate practice, every Supreme Court nominee is afforded an up-or-down vote on the Senate floor. A departure from that practice would threaten to impose severe political costs on Senate Democrats. In a competently run confirmation campaign, a strong proponent of judicial restraint will win majority approval in the Senate, with votes to spare.

Now for the extended version…

I highly recommend reading the entire article if you are at all interested in the future of the Supreme Court. Obviously, this is all hypothetical. There is no guarantee that Bush will get the chance to replace another Supreme Court justice, but it is definitely worth considering now rather than being caught off guard in the future.

I do like Whelan’s logic, overall. Unless the Democrats want to commit political suicide for 2008, they will have to send Bush’s nominee before the entire Senate for an up or down vote.

Ironically, success in filibustering a nominee would probably produce the riskiest situation for Democrats, especially if President Bush steadfastly stood by an appealing nominee. Going into the 2008 election year, Democrats would be foolish to highlight the gulf between the parties, and between their presidential candidates, on the proper role of the Supreme Court.

My only problem with this article is that the author began by assuming the Bush administration would not only run a confirmation campaign competently, but also nominate a strong strict constructionist to begin with — a bit of a stretch after the Harriet Meiers debacle. However, his pessimism (a true sign of a Bush-era conservative) shines through in the end:

To be sure, there will be plenty of timid voices counseling President Bush to go wobbly. A number of Republican senators, for example — including some conservatives — will encourage the hopeless illusion of a consensus pick. Confident that they will win an issueless reelection campaign, they would prefer to avoid the controversy of a contentious confirmation fight, even if that controversy will most likely redound to their benefit. Why, they ask themselves, incur even a small downside risk? Some White House advisers may fear that political capital will be diverted from their own favored priorities, and others may believe that the benchmark of a successful nomination is a quick and quiet confirmation, rather than the appointment of a quality justice.

President Bush’s appointments of Chief Justice Roberts and Justice Alito are perhaps his greatest domestic achievements. If another vacancy develops, President Bush can enrich his legacy with another outstanding appointment or jeopardize it by an inferior selection. The choice will be his, and no one should mistakenly believe that the bare Democratic majority in the Senate prevents him from selecting another strong proponent of judicial restraint.

Food for thought, eh?

Check out the article for the rest of Whelan’s extended version.