Judging McCain on Judges - The American Spectator | USA News and Politics
Judging McCain on Judges

Gerald V. Bradley disagrees with Bruce Bartlett’s Politico column about John McCain’s reliability on judges. Some of Bradley’s arguments are right — there is no perfect way to prevent another John Paul Stevens, though the establishment of well credentialed conservative legal networks like the Federalist Society offers some assurance — but this one strikes me as wrong: “[I]t is McCain and not Obama who has the sense of the Senate on judges – and the sense is that Roberts and Alito are confirmable. The most obvious lesson is that, if McCain nominates more Alitos and Robertses to the Court, they will be confirmed… Bartlett does not explain why the politics of the Roberts/Alito battles have changed dramatically.”

The politics of judicial confirmation have changed since Roberts/Alito in one fairly obvious way: Roberts and Alito were confirmed by a 55-45 Republican Senate. They could only be defeated by Democratic filibuster. The next president’s judicial nominees will almost certainly have to be confirmed by a majority Democratic Senate, one where the Democrats have a larger majority than their current 51-49. They can be be voted down by a majority of the full Senate.

Roberts peeled off enough Democratic votes to have won confirmation even in a Democratic Senate — assuming the pressure on Senate Democrats to resist Republican judicial appointments doesn’t increase with their majority — but Alito didn’t. Alito got just four Democratic votes, seven less than Clarence Thomas in 1991. If the Democrats pick up four Senate seats this year, they can vote a Sam Alito down without a filibuster.

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