Don't Despair ...

... regarding judicial nominations. So says Ed Whelan at National Review Online:

The Democrats’ capture of formal control of the Senate is bad news for President Bush’s judicial nominations — especially to the federal courts of appeals — during his final two years in office. But don’t be fooled by Democrats’ bluffing. There’s still plenty of room to get another excellent Supreme Court justice — or even two or three more — confirmed.

Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

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(hat tip: Boethius)

My Comments:
I pretty much agree with Whelan's analysis. The job of confirming originalist judges has certainly been made more difficult, but by no means impossible. It would, for example, be very difficult for the Senate not to confirm a highly qualified Hispanic nominee.

Many conservatives cringe at the notion of nominating someone on the basis of diversity or identity politics. Under the circumstances, however, it may very well be that the BEST nominee the President can put forward is one who is well-qualified but also happens to be Hispanic, or black, or a woman.

Compromising on identity politics is one thing. But, of course, getting an originalist/strict-constructionist/textualist/whatever confirmed will require the President to show some fortitude.