The consensus nominee

Today marks the start of a new term for the U.S. Supreme Court, as well as the official beginning of what will be deemed “the Roberts Court,” as the new Chief Justice John Roberts takes his seat on the bench. As smoothly as his confirmation went, 22 Democratic Senators still voted against him. Leftist groups can pat themselves on the back for managing to muster even that much opposition to an impeccable candidate like Roberts, but should they?

From one perspective, confirming Roberts by a 78-22 vote rather than a 100-0 vote appears to send the message that whoever President Bush nominates for Associate Justice Sandra Day O’Connor’s seat risks a Bork-like rejection should he or she not be less “conservative” in judicial philosophy. “This is the time for a consensus nominee,” said Sen. Charles Schumer (D-NY), implying that a typical conservative nominee like Roberts would not be sufficient for the next go-round.

And from a political point of view, Democrats see the Republicans reeling in the polls — from the aftermath of Hurricane Katrina, Rep. Tom DeLay’s indictment for evading campaign-finance laws, and an increasingly unsure situation in Iraq — and are eager to make any fight they can to help the GOP’s doldrums last.

But it is more likely that the Democrats will instead regret those 22 nays. Despite Sen. Schumer’s opinion, Roberts was the consensus candidate. By putting up a fight over him, Democrats have made it more likely that Bush’s next pick will be an ideologue like Associate Justice Antonin Scalia rather than a mushy pragmatist like O’Connor.

What Democrats failed to realize is that what makes a particular nominee a “consensus nominee” is not that nominee’s political views. It is always expected that a Republican president will nominate conservatives and a Democratic president will nominate liberals to the bench. And so the fact that the new Chief Justice is a conservative like the former boss he replaces should have come as no surprise.

Rather, a true “consensus nominee” has been a candidate with impressive professional qualifications, no juicy skeletons in the closet, and the ability to respectfully defend him or herself against skepticism. Previous “consensus nominees” have included the conservative firebrand Scalia (approved 98-0), former ACLU General Counsel Ruth Bader Ginsburg (96-3), and solidly leftist Stephen Breyer (87-9).

Clearly, no one would mistake these three for being “moderates” in any sense of judicial or political philosophy, and yet each was approved by greater margins than Roberts, despite it being generally agreed that when it came to a sterling resume and a strong representation before the Senate Judiciary Committee, Roberts had few equals, if any.

Even when Justice Rehnquist was nominated to the Chief Justice position he commanded a number of Democratic votes, and this after he had already lodged his dissent in Roe v. Wade! Admittedly, it wasn’t like rejecting that nomination would have changed the complexion of the Court any, but the fact that some Democrats then willingly voted for a Justice who had argued against a right to abortion is wholly at odds with the image of Democrats today.

Indeed, lately, ideological litmus tests are becoming the order of the day for both parties. Republicans won’t vote for a nominee that would uphold Roe v. Wade, while Democrats won’t vote for a nominee that won’t. So it’s understandable that nominees continue to engage in the evasion ritual when questioned about abortion by nosy Senators. But now it seems that Democrats aren’t happy enough with evasion.

While it may play well to the Democratic base for the Senators to vote against a nominee from a Republican president, regardless of his or her qualifications, the danger is that this strategy risks making every future Court pick, especially ones from a Democratic president, subject to the same impossible scrutiny. No nominee can be against the constitutional right to abortion while also being for it, for example, so the “consensus candidate” becomes a mythical beast. And so why bother trying to find one?

Rather than sending a message of warning to Bush over his next pick, those 22 nay votes against Roberts have indicated that there can be no real consensus candidate. As a result, Democrats have basically dared Bush to pick an ideologue to please his base. And with a Republican Senate already in place, that’s a dare that Bush is willing to take.

James N. Markels is an attorney and a regular columnist for Brainwash.