Judging The Election Results

CBS News legal analyst Andrew Cohen says the makeup of the Supreme Court could be changed by a Democrat-controlled Senate. – Ed.
(CBS/AP)
There are plenty of other good reasons why so many people are wringing their hands over the outcome of the Virginia Senate race between George Allen and Jim Webb. If Webb maintains his lead through the canvassing and recount process, a fairly good bet at this point, control of the Senate will strengthen the hands of the Democrats as they negotiate with the White House on issues foreign and domestic. On the other hand, if Allen miraculously comes back to win, the Senate will remain in GOP hands and thus temper whatever policy initiatives come out of the Democrat-controlled House of Representatives.

But one of the most vital and long-lasting reasons why control of the U.S. Senate matters is the role that body plays in confirming federal judges. If the Democrats regain control of the Senate, President Bush will no longer be able to try to force through that body staunchly conservative judicial nominees like the two men he recently nominated to serve on the U.S. Supreme Court-- Chief Justice John Roberts and Justice Samuel Alito-- and countless other lower federal courts judges who are even more ideological and partisan than those Justices. If the President wants to succeed in appointing any judges at all in the face of a Democratic Senate, he will have to look to more moderate jurists. And there are still plenty of them out there, in case you were wondering.

But Senate Democrats will face their own pressure points if and when Webb prevails. No longer will they be able, politically anyway, to threaten to filibuster when the President appoints federal judges. If they obtain their majority, they will have a responsibility to fill the many vacancies on the federal bench-- some that have existed for years. If they balk at this job they will subject themselves to an honest charge of obstructionism, the opposite of what they pledged to do on election night when the extent of their victory became clear.

There is an opportunity now, I believe, for real progress on the judicial nomination front, which has been mired for years in rank partisan conflict. The President has to know from these election results that he must govern with a more moderate focus. And if Webb prevails in Virginia Senate Democrats have to know that their newfound power brings with it newfound responsibilities to ensure that our federal judiciary is up and running at full speed, with many fewer vacancies than it now has. The moment is here. Let's see what the politicians can do with it.