The Next Supreme Court Vacancy

Ed Whelan writes at National Review Online that "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.

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...Democrats won their majority position in the Senate by running unconventional candidates like pro-lifer Bob Casey in Pennsylvania. But the Democrats on the Judiciary Committee tilt heavily to the far left ideological base of the party, and no nominee worthy of a Supreme Court spot has any realistic prospect of winning a single Democratic vote in committee. (When their votes didn’t matter and when they were positioning to defeat the next nominee, three Democrats voted for Chief Justice Roberts in committee; none voted for Alito.) Neither Democrats generally nor the dozen or more individual Democrats presenting themselves to their constituencies as moderates can afford to let the likes of Teddy Kennedy and Chuck Schumer decide the fate of a Supreme Court nominee.

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...The Democrats have the narrowest of margins in the Senate — 51 to 49 — and a quality nominee should hold all or nearly all Republicans. It’s also easy to identify plenty of possible Democratic votes. Start, for example, with the four Democrats who voted for Alito — Byrd (West Virginia), Conrad (North Dakota), Johnson (South Dakota), and Ben Nelson (Nebraska). Look to other Democrats in “red” states, especially those who are running for reelection in 2008 — two, Landrieu (Louisiana) and Pryor (Arkansas), are prime targets. And add in newly elected moderate (or moderate-posing) senators like Casey (Pennsylvania) and Tester (Montana). There’s simply no reason to think that a strong proponent of judicial restraint won’t earn the votes to be confirmed.

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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.

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My Comments:
While I think Whelan is exactly right on the substance (especially were Bush to nominate a minority female with a compelling life story, like Janice Rogers Brown), all this speculation about another Supeme Court vacancy is just wishful thinking. The liberal justices all know that Bush and the Republicans are on the ropes, and none of them will step down until they know the White House is "safely" in Democrat hands.

I'm afraid Bush won't get a 3rd bite at the Supreme Court apple. But I'd sure love to be wrong about that.