The Nine [146]
In 2000, Bush had campaigned as a “compassionate conservative” and “a uniter, not a divider,” pledging to surmount the partisanship that had consumed Washington during the Clinton years. But in the 2004 race, Bush shifted to more ideological priorities, hoping to motivate a conservative base, mostly evangelical Christians, that had felt slighted during the earlier contest. The issues that mattered most to them were all on the Supreme Court’s agenda, and so the Court played a more central role in Bush’s second campaign.
Indeed, the president’s courtship of evangelicals led to a curious moment in the campaign. During Bush’s second debate with John Kerry, the president answered a question about possible Supreme Court appointments by attacking the Dred Scott decision, which he characterized as “where judges years ago said that the Constitution allowed slavery because of personal property rights. That’s a personal opinion; that’s not what the Constitution says.” Decided in 1857, the Dred Scott case has been obsolete for decades because it was overruled by the passage of the Thirteenth and Fourteenth Amendments after the Civil War. Though many observers in the mainstream media were puzzled by Bush’s invocation of the ancient and irrelevant precedent, it served an important purpose. Within the antiabortion movement, Roe v. Wade is often described as the Dred Scott of modern times—a monstrous case that deserves reversal. In coded language, Bush used the debate to signal his agreement with that view.
So the conservative base came into 2005 expecting payback, in the form of thoroughly acceptable judicial appointments. Just after the election, those activists first made their presence felt by punishing Arlen Specter for his comments about Roe v. Wade. In the months that followed, they pushed the Senate to confirm many of Bush’s long-stalled judicial nominees. (Priscilla Owen, the Texas justice, had still not received a vote four years after she was named in Bush’s initial group of eleven nominees.) During Bush’s first term, Democrats had used Senate rules to force Republicans to muster sixty votes, rather than just a majority, on Bush’s more controversial judicial nominees. These Democratic tactics amounted to filibusters against the would-be judges, and conservative activists like Jay Sekulow began pressing the Senate to ban the use of filibusters to stop judicial nominations.
In the spring of 2005, the Senate nearly imploded over the issue of judicial confirmations. The filibuster rule amounted to the principal difference between the rules of the House of Representatives and the Senate; in the House, a simple majority could essentially force through any legislation it supported, while the Senate required a three-fifths majority, or sixty votes. With only fifty-five Republicans in the Senate, the filibuster rule meant that the minority Democrats could delay or even stop any law or nomination, if they could stay united. The filibuster rule was designed to push senators toward compromises and bipartisanship. Conservatives, including many Republican senators, began arguing for a change in the Senate rules, so that a simple majority could bring nominations to a vote. The proposed change in the venerable Senate procedures was so great that the proposal was nicknamed the Nuclear Option. For his part, Bush implicitly endorsed the change in his State of the Union address,