Has the Court been won?

By Aziz P. -
a very thought-provoking comment at RedState caught my eye:

Just wondering by Menlo

I'm starting to wonder if the Supreme Court is a lost cause given the Democrat majority is likely to only grow. No one who is any good could get 60 votes for cloture with the current Senate makeup (or worse). Whether the President will cave in (as Reagan did) remains to be seen.

Saying he would appoint people like Roberts and Alito is a mistake, since we know very little about where they stand. I was not very supportive of either after the confirmation hearings, and I'm still not convinced. It could be misleading to lump them in with Thomas and Scalia. There were actually a few judges about whom conservatives spoke very highly that I would oppose and one in particular I am glad left the whole judiciary.

There is no meaningful way a Presidential candidate can say who he would appoint. Everyone is so different, and opposing sides use the same adjectives to the point where no adjective describes a nominee well. Liberals are starting to suggest "originalism" can describe their own judicial philosophies (http://balkin.blogspot.com/2007/07/originalism-is-for-progressives.html). Stevens calls himself a "conservative." I was reading where "strict constructionists" was once thought by most to refer only to crime. Nixon used it to describe his nominees. At least he got one right, but look at the other!

Without more Senate Republicans, how would anyone most of us like make it? Has anyone seen the Senate votes for Bush appointees to the lower courts? Many of them were along party lines. A lot required some support among more moderate Democrats. Even some of the more liberal Republicans opposed some. Given the last term and the heightened concern for stare decisis, even by Arlen Specter, I certainly don't expect to see the additional "moderate" Democrats needed to overcome the loss in Senate seats. Besides that, imagine if those lower court nominees who won by a hair with a 55-seat majority were being nominated for the Supreme Court with a fortysomething-seat minority.

Senate elections will be just as important for the court.


I don't have much to add to this analysis - but a strategy of packing the Senate is indeed the best long-term strategy for influence upon the Court. That's quite an insightful observation to make.

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