However, if Democrats take control of the already closely divided upper chamber (currently composed of 55 Republicans, 44 Democrats and one independent), a
Supreme Court appointment of the same caliber as Roberts or Alito would prove all but impossible. Alito’s confirmation passed only by a vote of only 58-42, with only four Democrats crossing the aisle to support the nomination. If Democrats gain an edge in the Senate, or even just manage to bring it closer to a 50-50 split, all future nominations, including those to lesser federal courts, will doubtless face the bitter and hopeless fate experienced by nominees of Republican presidents beholden to a Democrat Senate.
With the exception of their commitment to President Bush’s national-security and tax-relief efforts, congressional Republicans have done little to commend themselves for re-election. Yet when we think of the issues destined to appear before the courts now and in years to come—counter-terrorism laws, abortion, school choice, affirmative action, personal property, business regulation, environment regulation and on the list goes—it may be shortsighted to throw the bums out just yet.