The Right Coast

November 09, 2004
A Filibuster is Unlikely to Stop Michael McConnell
By Mike Rappaport

My recommendation that President Bush nominate Michael McConnell of the 10th Circuit to be Chief Justice when William Rehnquist resigns has received some support in the Blogosphere from Eugene Volokh, Stephen Bainbridge, and Glenn Reynolds (although the latter prefers Eugene Volokh). [Update: Stuart Buck also endorses McConnell.]

Stephen Bainbridge would like McConnell, but fears that he would not be confirmed:

I agree with much of what Mike says, except possibly about McConnell's confirmability. McConnell's only been on the bench for a couple of years, which will give people a reason to argue that he lacks experience. When he went up for the 10th Circuit, he had the strong support of then-Judiciary chair Orrin Hatch, who will no longer be in as strong a position to help out. Finally, I'm not convinced that the liberal law profs who backed McConnell for the appeals court would be willing to do so for the Supreme Court. But let's hope I'm wrong; we certainly could do a lot worse.
Bainbridge, however, is overly pessimistic. Given McConnell’s credentials and views, he would certainly receive the support of Senate Republicans, who now have a majority. Thus, the only way his nomination could be defeated is through a Democratic filibuster. While Senate Democrats have shown that they can effectively filibuster Court of Appeals nominees, they are unlikely to be able to filibuster strong nominees to the Supreme Court like McConnell.

A filibuster is only possible if 40 Democratic Senators are willing to support it, but this is much less likely than it was for Court of Appeal nominees for several reasons. First, the general public does not like partisan delaying tactics that impair the operation of the government. While the Courts of Appeals functioned perfectly well with vacancies, the Supreme Court is widely regarded as not being fully functional without 9 sitting justices. As a result, a filibuster that prevents the Senate from voting on a nominee is much more likely to be seen, like a filibuster that would deprive the government of funds to operate, as a harmful partisan act. Moreover, the Republicans will be able to continually remind the country of the Democrats’ delaying tactics. They can repeatedly require votes on cloture, forcing the Democrats to take heat on the issue over and over again.

Second, Supreme Court nominations also differ from Court of Appeals nominations because the public pays much more attention to Supreme Court nominations. While the Democrats could avoid public scrutiny from Court of Appeals filibusters (and in fact gain support from more extreme Democratic activists), Supreme Court filibusters would receive the attention of most voters, including moderate voters who the Democrats need (and now appear to recognize that they need) to win elections. And of course Tom Daschle’s defeat, in part for his role concerning the Court of Appeals filibusters, will remind the more moderate Democratic Senators that there are consequences for taking unpopular actions.

Third, it will also be harder to filibuster Supreme Court nominations than ordinary legislation. Since a particular person is being nominated, this will personalize the issue. It may seem unfair to deprive a nominee of a vote on his candidacy. While this was also true of Court of Appeals nominees, the public was much less aware of these nominations.

Of course, if the President were to nominate an extreme or weak candidate, then the Democrats might be able to argue that a filibuster was appropriate. Perhaps the country would believe that the President had abused his prerogative and it was appropriate to block his nominee. But where the President nominates someone with excellent credentials and nonextreme views, this is a much harder argument to make. While left-wing Democrats with safe seats such as Schumer and Boxer would no doubt be willing to filibuster McConnell, more moderate Democrats would be much less willing to take the heat.