Senate Majority Leader Harry Reid admitted yesterday that he doesn’t have the 60 votes necessary to confirm Dawn Johnsen as head of the Justice Department’s Office of Legal Counsel, because at least a few Democrats will vote against her. That should give President Obama pause as he considers his first Supreme Court nomination – all the more so because a President’s selection of judicial nominees is given less deference by the Senate than his choice of Executive Branch nominees like Johnsen. Dawn Johnsen’s troubled nomination is emblematic of at least three obstacles that Obama’s High Court nominee will encounter if she is as unabashedly supportive of judicial activism and liberal causes as Johnsen.
First, the key to confirmation of President Obama’s Supreme Court nominees – now and in the future – is red and purple state Democrats like Sen. Ben Nelson (D-Neb.), who is “very concerned” about Johnsen’s nomination. Having 59 or 60 Democrats in the Senate does not mean Obama has a free hand in choosing the next High Court Justice.
Second, the surest way for Obama to lose the vote of a red or purple state Democrat is to nominate someone whose values are decidedly to the left of those of the senator’s constituents. For example, Ben Nelson has pointed to Johnsen’s work as a pro-abortion activist. A Supreme Court nominee who believes that partial birth abortion and gay marriage are constitutional rights, but that individual gun ownership and freedom from discrimination regardless of race aren’t, is unlikely to survive the confirmation process.
Third, senators who oppose the President’s High Court nominee can succeed merely by ensuring that the nominee gets a thorough and thoughtful examination, rather than being rushed through the Senate before the August recess. Once the nominee’s record and views are fully aired, each and every Democratic senator will decide if they can defend the nominee before the folks back home. If Sen. Reid still has the votes for confirmation after the senators face their constituents in August, no one can complain that the process wasn’t fair.
Cross-posted at CFJ’s Blog.