- The Washington Times - Wednesday, September 30, 2009

OPINION/ANALYSIS:

Republicans still worry about how the public viewed their opposition this past summer to confirming Judge Sonya Sotomayor’s appointment to the Supreme Court. Democrats waste no time with concerns about their opposition to Republican court nominees.

A close examination of the record shows that over the last 50 years, Democrats have completely dominated the confirmation process with little political consequence.

In the 20th century, the Senate defeated four nominees to serve as associate justices, all of them nominated by Republican presidents. The Republican slump could have been ever more stark, but for Clarence Thomas razor-thin vote of 52-47. The crowning jewel of shame in this coronation of activist achievement was the defeat of President Reagans nomination of Judge Robert Bork.

Democratic presidents, on the other hand, have not lost a single nominee for associate justice in this century or the last owing to Republican opposition. (President Johnson did lose Abe Fortas, but that was a result mainly to ethics questions and dissent from Southern Democrats.) Democrats have amassed this streak while growing evermore bold in their selection of reliable activist nominees.

President Obamas most lasting legacy could be his imprint on the Supreme Court. Five of the nine justices currently serving are past their 70th birthday. Five new Obama picks, especially a replacement for a conservative stalwart like Justice Antonin Scalia, could recast the court and result in a warm embrace of the breathtaking sweep of the Obama policy agenda, even those policies rejected by Congress and the American people.

Since 1952 Republicans have won nine out of 15 presidential elections, and picked 18 of the 25 justices, which should have resulted in a Republican-picked, nonactivist majority of 6-3 or 7-2.

Instead, the court is locked in a mostly 4-4 battle with a floating “swing” justice determining the course for the nation on the most consequential issues of the day (rights of terrorists, abortion, regulation of carbon dioxide, property rights and campaign finance).

Presidents Kennedy, Clinton, Obama and to a large extent Johnson have enjoyed a wonderful sense of historical timing as court openings overlapped with Democratic Senate majorities. Republican presidents have often been faced with pushing their nominees through a Democratic Senate. These Democratic majorities have grown more brazen, and, since the defeat of Judge Bork, they have sent a clear message that they reserve the right to oppose any nominee who offends their liberal ideals.

This baked-in base of Democratic opposition can also be seen even when nominees are confirmed. President Clintons two nominees got 96 and 87 affirmative votes, respectively, from a Democratic-dominated Senate, whereas George W. Bushs two nominees received just 78 and 58 votes from a Republican-dominated Senate. All four of these nominees had attended the nations top academic institutions and went on to have distinguished legal careers, but Ruth Bader Ginsberg won 38 more Senate confirmation votes than did Bush-nominee Samuel A. Alito Jr., even though the party of the nominee controlled the Senate in each case.

The most consequential result of this dynamic is that Democratic presidents have selected reliable activist nominees with long public records. Compare that to Dwight Eisenhower, who famously referred to the selection of Chief Justice Earl Warren as one of his greatest mistakes. Conservatives groaned in sympathy, and their groaning has not often subsided.

In the last 57 years, only one Democratic presidents pick, Byron White, was a less-than-reliable liberal vote. Compare that to the laundry list of Republican misses: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens and David H. Souter, just to name the most disappointing. Fully 50 percent of the justices selected by Presidents Reagan and George H. W. Bush strayed from the stated positions of these presidents in abortion cases.

Senate Republican Leader Mitch McConnell of Kentucky and his top lieutenant on the Senate Judiciary Committee, Sen. Jeff Sessions of Alabama, are in an unenviable position as they try to maneuver as a minority party.

Mr. Sessions understands what is at stake, as he was a victim of the Democrats no-holds-barred approach to his nomination to a judgeship. Under Mr. McConnell and Mr. Sessions, a key shift took place in the Sotomayor confirmation process as Republican senators were more willing to raise objections to the nominee on philosophical grounds, which included an examination of the nominees entire public record.

In fact, more Republicans opposed this nominee than any Democrat nominee since 1894. This opposition might be considered especially bold when considering the personal story of Justice Sotomayor.

With an aging bench and five members on the sunset side of life, another opening could occur soon. Our president has inherited an impressive Democratic string of Supreme Court confirmation victories. Streaks were meant to be broken, and in mustering 31 no votes from their 41 members, the Senate Republicans have taken their first step.

• Matt Schlapp was White House political director in the second term of George W. Bushs presidency.

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