Federal judicial nominees have to make it through the U.S. Senate Judiciary Committee before they are considered on the floor by the Senate. Procedural devices can pull a nominee out of committee without its say so, but that requires a supermajority to buck the Senate leadership. Such a move wouldn't necessarily receive the same support from moderate Democrats that a cloture vote on a nominee already reported out of committee to the Senate as a whole with a favorable recommendation. Also, the reduced ranks of the Republican caucus in the Senate makes it harder for Republicans to muster that kind of supermajority.
Also, Democrats are unlikely to invoke the "nuclear option" to stop a filibuster of a controversial conservative federal judge. This would be possible only with Harry Reid's consent and direction and would be a gross breach of Senate norms, something that Republicans would be willing to do, but not Democrats. Thus, even if a judge gets out of committee, it would likely take just 41 votes to stop that judge on the floor of the Senate.
The existing membership of the Senate Judiciary Committee is as follows:
Arlen Specter, Chairman, PA
Orrin G. Hatch, UT
Charles E. Grassley, IA
Jon Kyl, AZ
Mike DeWine, OH
Jeff Sessions, AL
Lindsey Graham, SC
John Cornyn, TX
Sam Brownback, KS
Tom Coburn, OK
Patrick J. Leahy, Ranking Democratic Member, VT
Edward M. Kennedy, MA
Joseph R. Biden, Jr., DE
Herbert Kohl, WI
Dianne Feinstein, CA
Russell D. Feingold, WI
Charles E. Schumer, NY
Richard J. Durbin, IL
SCOTUS Blog reports that starting in January of 2007, two new liberal Democrats will join the committee, Ben Cardin of Maryland and Sheldon Whitehouse of Rhode Island, with existing Democratic members of the committee remaining there, and Leahy becoming its chairman.
If the Republicans agree with the allocation to them of eight seats on that Committee, one present member will have to leave the Committee (unless there is no other change in membership on that side). One of their ten members in the last Congress, Sen. Mike DeWine, was defeated for reelection. The lowest member in seniority on the GOP side is Sen. Tom Coburn of Oklahoma, one of the panel's -- and the Senate's -- most conservative members.
Ranking minority member Arlen Specter is the most liberal Republican left in the Senate, and has publicly expressed concerns about the constitutionality of the habeas corpus provisions of the Military Commission Act of 2006, despite the fact that he voted for it (much as John Salazar from Colorado did). Incidentally, two Republican members of the Gang of 14 opposed to judicial filibusters except in "extraordinary circumstances," Mike DeWine and Lincoln Chafee, were not re-elected.
None of the Democrats on the committee are among the Senate's moderates or the Gang of 14. All current members of the Judiciary Committee, for example, voted against Justice Alito both in Committee and on the Senate floor vote on the nomination. The only Democratic Senator on the Judiciary Committee who voted against filibustering Justice Alito was Senator Kohl.
The American Conservative Union give 13 of the Senate's Democratic Senators who are incumbents more conservative lifetime rankings than the Democratic committee member whom they rank as most moderate, Senator Kohl. The eleven are the moderates I listed in a previous post at my blog, and Senator Carper from Delaware and Senator Lieberman from Connecticut are the other two.
Because of the committee's planned 10-8 membership balance, two Democrats on the committee would have to break ranks for the Republicans to prevail in a partisan vote on the committee. One would likely be Senate Kohl, while Senators Biden, Feinstein and Feingold would be the most likely further targets of such efforts. But, none of them will be easy for conservatives to persaude. Meanwhile, it seems likely that Arlen Specter may join Democrats on the committee on some partisan votes, or at least, refrain from exercising what minimal powers he has as the ranking minority member of the committee to thwart the Democrats who control the committee.
The only options left to President Bush to get controversial conservatives appointed to the judiciary in his Presidency are recess appointments, which expire when his Presidency does, and any nominees he can manage to get through the appointment process during the lame duck session (which he is currently attempting), something one would like to hope that even moderate Democrats would oppose, although that is no sure thing. Still, Chafee's decision to put a hold on Mr. Bolton's nomination to be U.S. Ambassador to the United Nations, where he is currently serving as a recess appointee, at least sends a signal that this kind of gamesmanship will not prevail in the Senate.
Cross Posted at Daily Kos.