With Senate Republicans hanging together with near unanimity in the tough judicial nomination fights since President Bush took office, all eyes will be on Senate Democrats to see whether they can present a unified front if Bush nominates a staunch conservative to replace Justice Sandra Day O'Connor. With O'Connor having the distinction of being the most important swing vote on the Supreme Court -- leaning right a bit on economic and business issues, but somewhat to the left on social and cultural issues -- Bush's choice of a successor is far more important than if he were replacing one adamant conservative with another.
Without knowing who will be nominated, it's impossible to predict with any certainty which Democrats, if any, might stray from the party line. The more moderate the nominee is perceived to be, the less likely Democrats are to be united in opposition. But a look at the Senate floor votes cast during the 34 hotly contested judicial nomination fights over the past two and a half years gives clues as to which Democrats are most apt to buck their party.
Bush has had little problem keeping Republicans in line. Indeed, even the GOP's most independent senator, Rhode Island's Lincoln Chafee, strayed from the party line on only three of the 34 tough votes. That's a presidential support level of 91 percent.
With judicial nominees needing just a simple majority to be confirmed by the Senate, Democratic senators' stands are likely to be relevant only if a filibuster occurs. In that case, Bush would need to swing five Democrats in favor of confirmation if the GOP is unified -- more if he loses any of his own folks.
By far, the Democrat who has most often supported Bush's judicial nominations is Ben Nelson, who represents overwhelmingly Republican Nebraska. Nelson supported the Bush judicial nominees 30 of the 33 times in which he voted on them since 2003, a support level of 90.9 percent. The only other Democrat who usually supports Bush's contested judicial nominees is freshman Ken Salazar of Colorado, who has backed four of the seven (57.1 percent) judicial picks who have come up for a floor vote since he took office this January. Ranking third among Democrats who have supported Bush's judicial selections is Bill Nelson of Florida, who sided with the president on 12 of 31 votes (38.7 percent).
Seven other Democrats backed Bush's nominees in at least 20 percent of the most hotly contested fights during the past two and a half years. Freshman Barack Obama of Illinois supported the administration in two out of seven (28.6 percent) such votes since taking office early this year. In fifth and sixth places are Arkansas's two senators -- Blanche Lincoln, who cast her lot with the president in nine of 33 votes (27.3 percent), and Mark Pryor, who sided with Republicans in nine of 34 votes (26.5 percent).
Kent Conrad of North Dakota, another exceedingly Republican state -- at least in presidential voting patterns, having given Bush 63 percent of its vote last year, or 27 percentage points more than it gave Democratic nominee John Kerry -- backed Bush's judicial nominees in eight of 34 votes (23.5 percent). That is the same level of support Louisiana's Mary Landrieu gave them. In ninth and 10th places are Thomas Carper of Delaware, who backed the president's choices on seven of 33 ballots (21.2 percent) and Joe Lieberman of Connecticut, the Democrats' 2000 vice presidential nominee, who sided with Bush on five of 24 votes on controversial judicial nominees.
There have been 34 roll-call votes on contested judicial nominations since January 2003. Of them, 23 were cloture votes; that is, votes on whether to cut off debate and have an up-or-down decision on confirmation. The other 11 were actual up-or-down votes on whether to confirm a give appointee.
Among most Democratic senators, the level of support for Bush's choices did not vary much according to whether the balloting was over cloture or confirmation. But Florida's Bill Nelson was more likely to buck the Democratic Party's line on cloture votes, casting 10 of his pro-Bush votes on such procedural motions. On actual confirmation votes, he supported the president on just two of 11 votes.
In contrast, Arkansas's Lincoln and Pryor have been more willing to buck their party on confirmation votes than on cloture votes. Seven of Lincoln's nine pro-Bush judicial ballots were on confirmation votes. For Pryor, six of nine were.
Meanwhile, North Dakota's Byron Dorgan cast all four of his pro-Bush judicial votes in confirmation situations. Likewise, all three of the judicial votes that Connecticut's Chris Dodd cast in Bush's favor were on the question of confirmation.
The rest of the Democratic senators have exhibited little difference in their voting patterns on confirmations versus cloture votes.
Some Democrats seem more susceptible to party pressure and are likely to feel the most obliged to stick with their party on a tough Supreme Court nomination vote. This group would include, for example, members of the leadership, ranking members of committees, and senators with 2008 presidential aspirations. Of the 20 Democratic senators who sided with Bush on at least 10 percent of the tough judicial votes, Kent Conrad ranks seventh in terms of supportiveness for Bush's nominees. He is the ranking Democrat on the Budget Committee. Lieberman, top Democrat on Homeland Security, ranks 10th. New Mexico's Jeff Bingaman, the senior Democrat on the Energy Committee, ranks 11th. Tied for 13th place is Robert Byrd, the ranking Democrat on Appropriations, while Joseph Biden of Delaware ranks 16th and is the top Democrat on Foreign Relations as well as a possible 2008 contender. Tied for the No. 17 spot are Dorgan, Montana's Max Baucus, the top Democrat on Finance, and Jay Rockefeller IV, the ranking Democrat on Intelligence. No. 20 is Hawaii's Daniel Inouye, top Democrat on Commerce.
The only two probable presidential contenders in that top 20 are Biden and Indiana's Evan Bayh, both of whom must weigh the intensity of opposition of leading liberal organizations, activists, and donors against the strengths and weaknesses of a particular nominee. None of the top 20 currently holds a senior leadership position. (Byrd would be president pro tempore of the Senate if Democrats were in charge, because he is their most senior member.)
When Bush's Supreme Court nomination reaches the Senate, the first floor vote could be over whether to invoke cloture, cutting off a filibuster. On May 24, the Senate's "Gang of 14" -- seven Republicans and seven Democrats -- agreed to allow floor votes on certain Bush judicial nominees and not to use the filibuster against judicial appointees, except in "extraordinary circumstances." The gang opted not to define what would constitute an extraordinary circumstance, and its pact certainly did not say whether filling the swing seat on a Supreme Court routinely split 5-4 is by definition "extraordinary." So now the seven Democrats in the coalition (Ben Nelson, Salazar, Pryor, Landrieu, Lieberman, Byrd, and Inouye) will have to decide for themselves how much the May agreement restricts their actions. They will obviously come under considerable GOP pressure not to filibuster any but the most extreme nominee.
Senators' past behavior toward Bush's most controversial selections for lower federal courts gives us some hints about how they are likely to react to Bush's first Supreme Court nomination. But, in the end, the outcome of the confirmation process may well hinge largely on the nominee's own record, background, and personality -- factors we won't know until Bush makes his choice known.
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