Tuesday, June 03, 2008

If Elected, McCain Should Nominate a Senator to Fill a Supreme Court Vacancy (cough ... Brownback ... cough) [UPDATED]

Josh Mercer of the Fidelis blog links to a story highlighting Bob Novak's comments speculating that should he be elected President, McCain would likely not pressure the Senate to pick more conservative judges like Alito or Roberts:
The theory goes that given the extremely difficult climate and the prospect that the GOP will suffer deep losses in the Senate, it might be too difficult to confirm someone like Alito or Roberts with so few GOP Senators in 2009 or 2010. Someone clearly more moderate, like an Anthony Kennedy (gag), would be much easier to confirm.
Josh thinks (and I agree) that such circumstances may call for going the route of choosing a nominee from among one of the Senate's own:
If you want to avoid a tough fight, pick a Senator. There’s another theory that for at least some of the Senators, they would have a tough time voting against a fellow Senator and friend. Why not then nominate someone like John Cornyn? He’s a former State Attorney General and a strong defender of common sense law.
Josh is definitely on to something, but after their high-profile-profanity-laced showdown over immigration on the floor of the Senate, I have my doubts about whether McCain would nominate Cornyn.

Instead, if we’re looking for an appointment to the Supreme Court from the ranks of the U.S. Senate, then Associate Justice Sam Brownback sounds awfully good to me. (Wouldn't the commentariat just go absolutely nuts over the prospect of a 6th Catholic on the Court? That alone would be worth seeing Sen. Brownback nominated.)

Besides, McCain owes him one.


UPDATE
Dale raises a good point regarding appointing Sen. Brownback to the Court:
One problem: Doesn't Sebelius get to choose the successor if that happens?
I'd be willing to make the short-term trade-off of losing that Senate seat in order to get Brownback a lifetime appointment to the Supreme Court. Wouldn't you? A near-sure-thing vote against Roe v. Wade who would probably be confirmed with very little Senate opposition?

You betcha!

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11 Comments:

At 6/03/2008 1:01 PM, Blogger Dale said...

One problem: Doesn't Sebelius get to choose the successor if that happens?

 
At 6/03/2008 1:13 PM, Blogger Jay Anderson said...

It will depend on the specifics of the law in Kansas. In some states, the Governor must choose a successor from a slate of candidates compiled by the legislature. In others, the successor must be a member of the same party as the departing Senator. And in others, the Governor has free rein to appoint whomever.

At any rate, there still has to be a special election to fill the seat at the next general election. Besides, there's speculation that Brownback's seat may not be altogether safe, or at least not a slam dunk for reelection.

Finally, I'd be willing to make the short-term trade-off of losing that Senate seat in order to get Brownback a lifetime appointment to the Supreme Court. Wouldn't you? A near-sure-thing vote against Roe v. Wade who could probably be confirmed with very little Senate opposition?

You betcha!

 
At 6/03/2008 1:27 PM, Anonymous crankycon said...

I like Senator Brownback, but I also worry that a Senator would have a tougher time getting confirmed. Sure, the Senate's whole collegiality thing might help, but at the same time, he has a voting record that would be ripe for public consumption. In other words, he's a much more open book than your typical lower-court judge. It will be easier for the nagging leftist interest groups to attack him because he has a much clearer record on the issues, and the volume might get to so high that the Dems in the Senate would be obliged to obey their squealing masters.

That said, I can think of plenty of worse options.

 
At 6/03/2008 1:33 PM, Blogger Jay Anderson said...

"... he has a voting record that would be ripe for public consumption. In other words, he's a much more open book than your typical lower-court judge."

I see your point, but I also think that Senators would be more likely to cut him some slack in that regard (glass houses and all). And given the amount of good will that Brownback has built up in the Senate (he's apparently personally close to many of the Democrats), they'd have a very difficult time voting down such a nomination.

 
At 6/03/2008 5:16 PM, Blogger James H said...

"A near-sure-thing vote against Roe v. Wade who would probably be confirmed with very little Senate opposition?"

LOL what are you smoking. Can we recall how they treated their fellow Senator Ashcroft. My Gosh I would love Brownback (I didn even realize he was a lawyer) but his confirmation would be brutal

 
At 6/03/2008 5:24 PM, Blogger Bender said...

If I were a conservative Republican in the Senate, as a matter of principle I would vote AGAINST someone like Brownback, just as I would vote against Hillary Clinton for Supreme Court. The judiciary is politicized enough without putting, not only politicians, but presidential candidates on the bench.

 
At 6/03/2008 5:25 PM, Blogger Jay Anderson said...

I knew someone would bring up Ashcroft. But Brownback is no Ashcroft, who alienated many in the Senate. Many Democrats were still angry at him for his actions in a confirmation hearing that derailed a black appellate court nominee. And Ashcroft didn't have close personal ties to some of the Democrats that Brownback has.

And, in the end, Ashcroft was still confirmed. I would be willing to guarantee that Brownback would be confirmed with at least 60-65 votes.

 
At 6/03/2008 6:38 PM, Blogger Jay Anderson said...

"The judiciary is politicized enough without putting, not only politicians, but presidential candidates on the bench."

It's happened throughout our nation's history, often resulting in a less politicized Court than what we currently have. William Howard Taft was, by all acounts, an excellent Chief Justice.

And I'm not sure someone like Brownback would be any more political than, say, Anthony Kennedy. In fact, I believe he would be less so.

The whole point was that if all the potential nominees we have to choose from coming from within the judiciary or legal academia are squishy moderates (someone like a Kennedy), it would be preferable to put a Brownback or a Cornyn on the Court.

 
At 6/03/2008 8:11 PM, Anonymous Victor said...

The Kansas rule (PDF warning) is: governor appoints until a special election can be on the next federal election day, for the remainder of the term.

Ironically, Brownback actually entered the Senate under those circumstances -- in the wake of the resignation of Bob Dole in June 1996. The seat was filled that day (or the day the resignation took effect), by Sheila Frahm, another Republican, but there was a federal election in five months (Kansas, by coincidence had a regularly-scheduled Senate race in 1996 as well). Brownback won, though he had to run again for a full term in 1998, on the regular cycle.

 
At 6/04/2008 5:55 AM, Blogger Zach said...

I like the prospect of a Justice Brownback, but I have a hard time imagining that the dems would exercise any additional restraint in his confirmation process.

Those are some ruthless, evil dudes. Just look at what they did to Roberts, Alito, Clarence Thomas, Gen. Petraeus, and so on.

None of these were Senators, true, but they are all honorable men deserving of any reasonable person's respect. Did that matter to the collection of dirtbags on the left?

I think they'd preface their crucifixion with pleasantries, but they'd crucify Brownback just the same.

 
At 6/04/2008 11:47 AM, Blogger Dale said...

Yeah, Jay, I'd take that trade.

IF I could be convinced that we'd actually get it. Senate collegiality is in worse shape than chivalry. Remember what happened to the late John Tower of Texas, proposed as Bush I's defense secretary.

I think Brownback would be pilloried, sad to say.

 

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