Minority Rule?

Steven G. Calabresi wrote in the Weekly Standard The legal left is dangerously close to winning the political war it has been fighting against the Bush administration over the future direction of the federal courts. The evidence of this is that whenever rumors are floated of possible Bush Supreme Court nominees, there are some very prominent conservative names that aren't mentioned, though they should be. The eminently qualified conservatives Democrats have quashed include Miguel Estrada, who is Hispanic, Janice Rogers Brown, who is African American, Bill Pryor, a brilliant young Catholic, and two white women, Priscilla Owen and Carolyn Kuhl. By keeping these five nominees off the federal courts of appeals, Democrats seem to have blocked Bush from considering them for the Supreme Court.

Which is why Frist rejected Reid's offer to let two white men through, but demanding that the others be withdrawn

When George W. Bush became president in 2001, the legal left and the Democratic party rallied around the slogan "No more Clarence Thomases." By that they meant that they would not allow any more conservative African Americans, Hispanics, women, or Catholics to be groomed for nomination to the High Court with court of appeals appointments. The Democrats have done such a good job of this that, today, the only names being floated as serious Supreme Court nominees are those of white men.

The Dems figure they can get away with filibustering minorities for the appeals court, but they would not get away with filibustering them for the Supreme Court, so they have to prevent them from ever being nominated.

This is what is at stake in the fight that rages now over whether the filibuster of judges gets abolished. Leading Democratic activists like Bruce Ackerman have called on Senate Democrats never to allow another Antonin Scalia or Clarence Thomas on the Supreme Court. If they succeed in establishing the proposition that it takes 60 instead of 51 votes to get on the Supreme Court, conservatives can forget about ever again appointing a Scalia or a Thomas.

If the Dems are successful, there is not a snowball's chance in hell they would ever get a Liberal on the court either. Which would mean that only centrist judges, or judges the President thought were centrists, could ever get elected, which would mean that no one would know what sort of court we would have. A liberal like Kennedy (appointed by Reagan) might sneak through, and a conservative might fool a Democratic President and sneak through, but no President, Democrat or Republican, would be able to nominate people they really liked.

Some Republicans have explored the idea that maybe a compromise is possible with the Democrats whereby Bush's court of appeals nominees are allowed through but the power to filibuster judicial nominees is retained. This would be a bad deal because the fight over the filibuster was always a fight about the future direction of the Supreme Court, and as long as the device is retained, it will be trotted out against any clearly conservative Bush Supreme Court nominee. It is time to drive a stake through the heart of the filibuster of judges.

I agree completely.

Senate Democrats also reportedly proposed a "compromise" of their own: Filibusters against Thomas Griffith and William Myers, nominated for the D.C. Circuit and Ninth Circuit respectively, would be dropped if Republicans would withdraw the nominations of Janice Rogers Brown and Priscilla Owen. But this bad deal just shows how afraid Senate Democrats are of Brown and Owen. Why are Senate Democrats so afraid of conservative judicial nominees who are African Americans, Hispanics, Catholics, and women? Because these Clarence Thomas nominees threaten to split the Democratic base by aligning conservative Republicans with conservative voices in the minority community and appealing to suburban women.

Absolutely. And the Dems can't afford to lose any of their minority communities.

The Democrats need Bush to nominate conservatives to the Supreme Court whom they can caricature and vilify, and it is much harder for them to do that if Bush nominates the judicial equivalent of a Condi Rice rather than a John Ashcroft.