Turn, Turn, Turn: A Time for Bush to Embrace Consultation

Based on the results of Tuesday's election, the Democrats are poised to take control of the Senate – and thus the Senate Judiciary Committee – beginning in January. This could mean big changes for the judicial nominations process during the last two years of the Bush presidency.

As reported by Tom Curry on MSNBC, President Bush’s legacy may be in jeopardy:

Apart from Iraq, Bush’s most lasting legacy, his impact on the federal judiciary is in jeopardy as a result of Tuesday’s outcome. Bush’s great successes — getting Justice Samuel Alito and Chief Justice John Roberts on the high court — may now be impossible to repeat.

This is because, like it or not, President Bush will no longer have carte blanche to push ultraconservative nominees through the Senate. The Legal Times discussed the president's options:

At the very least, a Democratically controlled Senate Judiciary Committee would make it unlikely that President George W. Bush’s most conservative choices will even get out of the committee. That would leave Bush with two choices: He could pick more moderate conservatives that would pass Democratic muster, or he could pick highly conservative judges who would not get a majority committee vote, a choice that would give the Republicans’ ultraconservative base an energizing issue.

We hope that President Bush will honor his recently announced commitment to bipartisanship by nominating moderate judges. That may be a hard pill for the president to swallow, however, considering his track record thus far of nominating ultraconservatives – and repeatedly renominating them after their rejection by the Senate – and the president's complete refusal to consult with Democrats on nominations. Bush also may try to use judges as a final bone to throw to his conservative-activist base. Now that the base has lost some of their heft at the polls, they may be clamoring more than ever for “activist” judges to push their agenda.

But if he does that, he is taking on a losing battle. We are expecting a new Senate to demand that the president nominate fair-minded, qualified judges who will uphold the Constitution. The American people have rejected the right wing agenda, and President Bush should heed this “mandate” and nominate judges who hold mainstream views.