The Senate and the SCOTUS

Editor's note:The Smoke Filled Room is now Politics Blog, and we can be found here: http://politics.blogs.com/

The debate about the future of the U.S. Supreme Court has thus far centered on the outcome of the presidential election. Equally important, however, will be the outcome of this year's senate elections. As political junkies of all stripes are painfully aware, a President's wish is not the Senate's command when it comes to Article III appointments.

Here is the scenario most favorable to Republicans that is still reasonable, especially in light of a possible blowout by President Bush this Fall.

When given the option, I always take the bad news first. Republican Alan Keyes is going to get murdered by Democrat Barack Obama. It won't even be funny. The seat is currently held by Peter Fitzgerald, a Republican. 1 DEM gain.

In Alaska, Senator Lisa Murkowski overcomes a challenge by popular former governor Tony Knowles.

In Colorado, beer scion Pete Coors defeats Attorney General Ken Salazar. The seat is currently held by Ben-Nighthorse Campbell, a Republican.

In Oklahoma, former Congressman Tom Coburn defeats Congressman Brad Carson. Coburn, a physician, has been having an awful time against his dynamic young opponent. The race has recently been dominated by a scandal regarding his sterlization of a former patient, and whether it was malpractice. Because Coburn formerly represented Carson's district, the most Democratic in the state, perhaps he can neutralize his edge there and win big margins across the rest of this redder than red state. This will be the toughest Republican seat to hold, with the exception of Illinois. Remember, we're in best case scenario mode here, so Coburn wins (this is not, however, my prediction).

In North Carolina, Richard Burr gets his act together (he was hand selected by the White House, who cleared the field for him well in advance, yet he hasn't quite gotten his bearings) and defeats Erskine Bowles, the former White House Chief of Staff. Bowles, who ran a spirited campaign against Elizabeth Dole in 2002, has been doing better this time. The presence of incumbent Senator John Edwards on the Democratic ticket could increase Democratic turnout in this otherwise heavily red state. However, we're still in best case scenario mode, so Burr wins. 1 GOP gain.

In South Carolina, Congressman Jim DeMint defeats state education superintendent Inez Tannenbaum. 1 GOP gain.

In Georgia, Congressman Johnny Isaacson wallops rookie Congressman Denise Majette. Because this is Zell Miller's seat, there will be no real change here regarding votes for judicial nominations. 1 GOP gain.

In Florida, former Housing and Urban Development Secretary Mel Martinez wins against Betty Castor for the seat currently held by Bob Graham. 1 GOP gain.

In Louisiana, Congressman David Vitter defeats Congressman Chris John for John Breaux's seat. This is a red state where Bush will win heavily, and Vitter should become the state's first Republican senator. 1 GOP gain.

South Dakota could be the upset of the election cycle. Tom Daschle is not poised to become Majority Leader (see above), so this will not be an issue as it was during the 2002 squeaker between John Thune and Tim Johnson. President Bush will be on the ticket, and will carry the state by an enormous margin. Thune is the former Congressman (elected statewide in South Dakota), and he ran a tough campaign last time around. He would have won the state's governorship (as he originally planned on doing) in a cakewalk. 1 sweet feeling GOP gain.

I hate to discount the "giant killer," Congressman George Nethercutt in Washington state (who holds his seat by virtue of beating the incumbent Speaker of the House, Tom Foley, in the Republican landslide of 1994), but he has shown no signs of being able to defeat incumbent Patty Murray.

The best case scario is this:

1 GOP loss and 6 gains for a total gain of 5. The Republicans currently have 51 votes in the Senate. With 56 Republican votes, add Senator Ben Nelson of Nebraska (a conservative Democrat in a red state who would like to keep his job) and Senator Bill Nelson of Florida (up for re-election in 2006 in a swing state), who will put their self-interest above the chance to help Ted Kennedy fillibuster a nominee. Other Democrats in red states such as Mary Landrieu (up in 2008) will be mindful of this as a potential future issue.

Some final points:

• I don't think that a fillibuster of a Supreme Court nominee is sustainable. The media attention will be enormous, and the White House will never ever back down until an up or down vote.
• The real threat to a conservative nominee by President Bush is the defection of moderate Republicans such as Olympia Snowe and Susan Collins of Maine, Arlen Specter of Pennsylvania, and lightweight legacy Lincoln Chafee (R-Andover). With a large enough margin in the Senate, these threats are empty.
• With the likely exits of Chief Justice Rehnquist, and Associate Justices O'Connor and Stevens, the stage is set for a major change on the U.S. Supreme Court.
• I know that I have completely ignored the effects of the senate races on the rest of the federal judiciary, and I apologize. I will say, however, that selecting a dozen or so nominees and blocking them, the current Democratic strategy, will be nearly impossible if the above described best case scenario plays out.