The Democrats are now promising to block any future Bush appointments until he promises not to make any more recess appointments. Senator Schumer has said, "The president's use of recess appointments to circumvent the advise and consent process puts a finger in the eye of the Constitution ..." Apparently filibustering an appointment is exactly what the constitution intended when it specified "advice and consent." Senator Daschle said, "At no point has a president ever used a recess appointment to install a rejected nominee onto the federal bench." That's a bit deceptive given that Pryor was never rejected. In fact, if a vote had ever been allowed, he would have been confirmed, but the Democrats filibustered to prevent one. As recess appointments are hardly uncommon, and have been used by such Democratic presidents as Clinton to appoint judges, Truman appointed 39, JFK 25. Deceptive or not, what the Democrats are doing will motivate Bush's base than anything Bush has ever done.
Nothing, and I do mean nothing, scares us conservatives more than the very real possibility that in our near future our laws will be decided by appointed judges, not our elected legislatures. See Donald Sensing for example. It's already happening, with the Massachusetts Supreme Court ordering the legislature to rewrite its marriage laws. I'm willing to bet that most moderates and more than a few liberals are frightened by that idea as well. Now that the Democrats have made it very clear that ideology matters more in judicial appointment than competence, that any form of judicial restraint, or "intolerant" views which happen to agree with 2/3rds of the population, are not just reasons to oppose a nomination, but reason enough to filibuster it, we're becoming very nervous about what our judicial system will look like with President Kerry doing the appointing. If Bush can successfully frame the debate on judicial nominations in these terms, strenuously arguing for the importance of judicial restraint, his base's support will be as solid as a rock. I think it fits strongly with his theme of an ownership society.
There are practical steps that must be taken here. The first is the Federal Marriage Amendment. While there may be some reason to support the Musgrave amendment, Orrin Hatch's amendment, which I personally prefer, fits better with the overall theme of curbing judicial overreach, and is much more likely to pass. If Bush were to throw his support behind Hatch's amendment, I think the Republicans who want to stick with Musgrave's would go fot it.
Second, Bush could voice reluctant support for the Bill which gives Congress the authority to overturn a supreme court ruling with 2/3rds vote (blogged here). I think it would take an amendment to do this, and I am also uncertain whether this is really such a good solution, but Bush needs to argue for a permanent solution to the problem of judicial overreach, not just the ad hoc solutions of more conservative appointees and an amendment whose sole purpose is to put a stop to one particular instance of judicial overreach.
Update: Oops, I called the amendment Gallagher's, rather than Musgrave's. Maggie Gallagher is a vocal proponent of the amendment, but Musgrave is the Congresswoman who proposed it.