Washington – Disheartened by the administration’s success with the Supreme Court nomination of Judge Samuel Alito, Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation’s judiciary and that they see little hope of holding off the tide without winning back control of the Senate or the White House.
Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
Republicans said that Bush, in making conservative judicial choices, was doing precisely what he said he would do in both of his presidential campaigns, and indeed that his re-election, and the election of a Republican Congress, mean that the choices reflected the views of much of the American public.
As a result, several Democrats said, Bush appeared on the verge of achieving what he has set as a primary goal of his presidency: a fundamental reshaping of the federal judiciary along more conservative lines.
Bush has appointed one- quarter of the federal appeals court judges, and, assuming Alito is confirmed, will have put two self-described conservatives on a Supreme Court that has only two members appointed by a Democratic president.
“They have made a lot of progress,” said Ronald Klain, a former Democratic chief counsel for the Judiciary Committee and the White House counsel in charge of judicial nominations for President Clinton. “I hate to say they’re done because Lord only knows what’s next. They have achieved a large part of their objective.”
Asked if he had any hope that Democrats could slow President Bush’s effort to push the court to the right, Klain said: “No. The only thing that will fix this is a Democratic president and more vacancies. It takes a long time to make these kinds of changes, and it’s going to take a long time to undo them.”
Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee, said it was now hard to imagine a legislative strategy that could significantly slow Bush’s judicial campaign.
“To stop a president on judicial nominations, you either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it’s a conservative nominee,” Schumer said. “The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it’s harder than it was last term.”
Few Democrats or analysts said they thought that Alito’s nomination could be blocked.
“It may be a mistake to think that their (Democrats’) failure demonstrates that they necessarily did something wrong,” said Richard Fallon, a professor of law at Harvard Law School. “As long as most of the public will settle for evasive or uninformative answers, maybe there was nothing that they could have done to get Alito to make a major error.”
The developments were particularly frustrating, Democrats said, because Bush has never made a secret of what he wanted to do with the judiciary. Democrats had devoted much energy to trying to stop it, starting even before Bush made his first judicial nomination.
By the end of last year, about 60 percent of the 165 judges on the federal appeals courts were appointed by Republican presidents. Of the 13 circuit courts of appeal across the nation, nine have majorities of judges named by Republicans presidents.
Indeed, many Democrats said that what took place with both Alito and John Roberts, recently confirmed as chief justice, simply underlined what Sen. John Kerry, D-Mass., the Democratic nominee for president in 2004, said would happen to the court if Bush was returned to the White House.
“George Bush won the election,” said Rep. Rahm Emanuel, D-Ill. “If you don’t like it, you better win elections.”