As I watch the election returns late Tuesday evening, Democrats are picking up seats in the U.S. Senate, perhaps on the way to becoming the majority party there, or perhaps not. The Solicitor General of the United States, Paul Clement, is probably up late preparing for Wednesday's oral arguments before the Supreme Court on the constitutionality of the federal partial-birth abortion ban. The two newest justices on that court, John Roberts and Samuel Alito, are preparing to hear those arguments in the morning along with their colleagues. Marriage amendments are on the ballots in eight states and doing well in most of those. Several states with ballot measures targeted at reining in the state judiciary in one manner or another are having mixed results. Why are these all connected?
In a word, judges. And opportunities fumbled and lost by Republicans to emphasize judges in this election. And social conservatives picking up the ball in state after state.
The federal ban on partial-birth abortion has more than a good chance of being upheld by this Supreme Court, and if so, it will be direct result of the president's wisdom in selecting two of the finest justices the court has seen since Antonin Scalia and Clarence Thomas were confirmed. It will also be a direct result of conservatives controlling the Senate and the Senate Judiciary committee, frustrating liberals' attempts to obstruct and filibuster good judges. Standing for principles on the issue of judges served Republicans well in the past, and as a result they won several key elections in 2004.
If Democrats had controlled the Senate during the last couple years, the president pointed out last week in a speech, John Roberts would not only not be the chief justice, but he would still be waiting for a hearing on his 2003 nomination to the D.C. Court of Appeals. Samuel Alito would still be faithfully serving on the 3rd U.S. Circuit Court of Appeals, but he most certainly would not be on the Supreme Court. Why?
The simple fact is that the majority party in the Senate controls the Senate Judiciary Committee. The chairman of that committee determines what nominees get a hearing -- and when. If controlled by liberals like Sens. Patrick Leahy, Ted Kennedy and Chuck Schumer, the future for conservative judicial nominees in the mold of Scalia or Thomas looks bleak. Although a Supreme Court nominee might be too high-profile to allow a future Chairman Leahy and a Democratic-controlled committee to delay confirmation hearings for very long, the president's court of appeals nominees will find it slow going, as they did in 2001 when Leahy chaired the Judiciary committee for a year.
At the state level, judges have emerged on the public's radar screen over same-sex marriage and other local issues. As rogue state-court judges conduct their social engineering, a frustrated electorate has responded with judicial voter guides, term limits and recall ballot initiatives, and other techniques to wrest control of their states' social policies back from the grip of black-robed activists. One lesson of this year's elections is that state judges no longer get a free pass from voters who either don't know who they are or don't care. Expect this trend to carry into the next election cycle, and even expand.
As we've heard before, elections have consequences, even unintended consequences. Perhaps the Democrats' victories in the Senate are due to the public's reaction to the Iraq war; or perhaps conservatives stayed home rather than vote for Republicans who were increasingly viewed as ineffective at governing responsibly. Whatever the reason, however, the fallout may hit hardest on conservative judicial nominees whose only fault is that they view the Constitution as hallowed ground rather than a playground. We'll know more as soon as the smoke clears in the Senate races in Montana, Missouri and Virginia.
And as rumors circulate in Washington, D.C., of an impending Supreme Court retirement before the end of the year, I can't help think about the lost opportunities of Republicans to make judges a campaign issue. This failure could make the next appointment to the high court an altogether frustrating experience for everyone involved.
It didn't have to be this way.
