A Chequer-Board of Nights and Days

Post-Robert Bork, it was thought that the only way to effect originalist/strict constructionist jurisprudence--especially on the Supreme Court--was to nominate stealth candidates; candidates who are originalists/strict constructionists and who have made their views on these issues clear enough, but who do not have so much of a paper trail that they would have trouble passing muster in a Senate where a significant number of Senators might make an issue of their jurisprudential thoughts.

With the Alito nomination, this line of thinking has gone by the wayside:

Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., 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.

In interviews, Democrats said that 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.

That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they were taking the courts too far to the right.

Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.

Republicans said that Mr. 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, meant that the choices reflected the views of much of the American public.

Republicans rejected Democratic assertions that Judge Alito was out of the mainstream. "The American people see Judge Alito and say, that's exactly the sort of person we want to see on the Supreme Court," said Steve Schmidt, the White House official who managed the nomination.

As a result, several Democrats said, Mr. Bush - even at time when many of his other initiatives seem in doubt and when he had been forced by conservatives to withdraw his first choice for the seat - 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. Mr. Bush has now appointed one-quarter of the federal appeals court judges, and, assuming Judge 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 A. Klain, a former Democratic chief counsel for the Judiciary Committee and the White House counsel in charge of judicial nominations for President Bill 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, Mr. Klain responded: "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."

The good news for the Democrats--and for the country at large--is that the Alito nomination proves that above all else, merit matters. The public saw a smart, serious, exceedingly scholarly figure in Judge Alito--and before him, Chief Justice Roberts--and decided that people of such distinction and achievement deserve to be on the United States Supreme Court.

What is surprising, however, is that the Democrats seem to have settled on this lesson just now. They could have learned it by seeing the overwhelming majorities with which Ruth Bader Ginsburg and Stephen Breyer were confirmed for the United States Supreme Court when they were nominated by President Clinton. Democrats like to lament the fact that the country has grown more conservative;  especially in the wake of the Reagan Presidency. But if that is the case, Ginsburg and Breyer should have garnered significantly more fervent ideological opposition. That they didn't indicates that the public--as it did with Judge Alito--put aside questions of ideology and focused on merit and distinction.

So what can future President do in the end to take advantage of this cultural situation? Simple: Nominate smart candidates for the United States Supreme Court with whom one can have serious conversations and manage their nominations effectively. It is a good circumstance to be in.

(Cross posted on RedState.)