Why a win
By Bruce Walker
web posted May 30, 2005
The Priscilla Owens confirmation and the deal which led to it are a win for conservatives, however unpalatable that may sound. The reason why is simple calculation. When the "gang" has specifically said that Owens, Pryor and Brown will not be filibustered, that means that Owens, William Pryor and Janice Brown will get votes not only for the Court of Appeals but also for the Supreme Court.
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The size of the confirmation vote for Owens, which may well be the smallest confirmation majority of the three, also makes it as nearly certain as these politics can be that all three will be confirmed to the Supreme Court. That court now has four solid conservatives, four solid leftists and one, O'Connor, who leans right, but not too far.
William Rehnquist, Sandra Day O'Connor and Anthony Kennedy (the least conservative of the "four solid conservatives") all would like to retire. They are old and have served very long terms on the Supreme Court, if suitable replacements could be found.
Out of those three, O'Connor, presumably, would be hardest to please. Which is what makes the character of two of the three nominees interesting. Sandra Day O'Connor was a woman on the Arizona Supreme Court. Surely she would find a woman on the California Supreme Court or the Texas Supreme Court as sympathetically as she would any conservative.
What happens after those three are confirmed on the Supreme Court? Justice Scalia, who is sixty-eight years old, could announce his retirement and President Bush could nominate Miguel Estrada to replace him. Because this would merely replace one conservative justice with another and because Estrada would be the first Hispanic on the Supreme Court, Democrats would find it very difficult to oppose him. Indeed, his nomination to the Supreme Court would be the ultimate "Make my day" Republican taunt to a disingenuous Democrat minority.
As soon as Estrada is confirmed, Republicans can take the position that not only is filibustering future judicial nominees good, but it is very good. Why? Although conservatives would have only a five to four majority, all five would be rock solid in their opinions and, critically, they would be much, much younger than the four Leftists left.
The average age of the five conservative justices would be forty-nine; the average age of the four Leftist justices would be seventy-two. If Democrats wish to stand for the principle that a super-majority is required by the Senate to confirm judicial nominees under those practical conditions, Republicans should counter not only by agreeing but by asking for a rule change.
Propose that a new rule be created addressing the cloture and judicial nominees. By making a new rule, the Senate procedural question will be permanently decided in favor of the filibuster, but Republicans should go farther and ask that the new rule provide that cloture for judicial appointments require the old two thirds majority.
The consequences of that would be incalculable. If Democrats resist a rule that says that filibusters cover judicial nominations, then they can hardly object to the Constitutional Option being exercised by Republicans. If they object to returning to the old two thirds, then they appear less interested in unlimited debate than Republicans.
If Democrats object that Republicans will use the filibuster to stop liberals from being appointed to the federal bench, Republicans can respond that the ideology of nominations is the specific point of Democrat filibusters.
This would either put Democrats permanently on the defensive on this issue, with President Bush able to nominate increasingly conservative judges, or it would force the Democrats to themselves collaborate in removing their future use of the Constitutional Option, and also agreeing that ideology is a just reason for not allowing a nomination to be voted on by the Senate.
Time and mortality will take care of the rest. Republicans need not worry about putting more conservative justices on the Supreme Court and need only worry about doing exactly what Democrats are doing now: obstructing indefinitely ideologically unsuitable nominations.
The five to four majority will become, relatively soon, a five to three majority, then a five to two majority as the twenty-three years average difference in the age of the young conservatives and old Leftists on the Supreme Court does its natural work.
Having pilloried these five so much, they are not likely to change colors in Washington, which means that the miraculous may actually happen: We may even end up with a Supreme Court that believes in the Constitution and protects us against overreaching government, and so we may get Leftists to oppose rule by courts. 
Bruce Walker is a contributing editor with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative
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