That's one possible outcome given the Democrats' filibustering of Bush judicial nominations. Would it be so bad? I've been thinking about this because judicial nominations are, obviously, an area where the President really does have quite an impact.
A few things first. One: While others have hysterically funny criticisms of Justice O'Connor's mushiness, I'm not necessarily one of her critics. Two: I don't necessarily think that what the Democrats are doing to Bush's nominees is any worse than what the Republicans did to Clinton's nominees, with the difference being that the Republicans held the Senate for most of Clinton's two terms and hence did not need to filibuster, since they could simply use their majority status to block his nominees. Third: I tend toward the view that the President should have some discretion to appoint judges whose judicial philosophies are consistent with his views, and that differences in judicial philosophy alone should not be a basis for blocking nominees (or perhaps even voting against them). On the other hand, if a judicial nominee is nothing more than a political hack masquerading as a judge, that's different.
The story is well-known by now to legal geeks. A number of Bush nominees for circuit court judgeships have been filibustered, including Miguel Estrada, Janice Rogers, Carolyn Kuhl, Bill Pryor, and others. The typical storyline has been that the Democrats claimed to have insufficient information about a nominee's views, which is almost certainly a pretext for the real reason, which is that the Democrats believe the nominee is an extreme right-winger. Otherwise, it's hard to block Estrada, who graduated from a top law school, clerked for Justice Kennedy, worked in the Solicitor General's Office, and prosecuted criminals as an Assistant U.S. Attorney. There's not any evidence that Estrada is a political hack who would just reach decisions favorable to a political agenda devoid of any consistent judicial philosophy. Instead, the idea seems to be that Estrada is too conservative in his judicial philosophy.
But if there is such a thing as "too conservative in his judicial philosophy," there is probably the mirror image of that, which is "too liberal in his judicial philosophy." I won't name names, but let's just say there are a number of judges on the Ninth Circuit who would qualify.
Indeed, if the Republicans follow the Democrats' lead (and this, regrettably, seems to be one of those one-way ratchets where things only get more and more bitter), then a President, to get his/her nominees of choice through, must hope that his/her party controls more than 60 seats in the Senate, to be able to end filibusters.
Otherwise, it's the Justice O'Connors who will dominate the federal bench. Can you imagine an entire Court of Justice O'Connors? There'd be a lot of 9-0 decisions, of course, with a little bit for everyone. But the loss to the institution resulting from such ideological homogeneousness would be quite severe. 9-0 decisions mean something precisely when the Court has differing views. One of the reasons Chief Justice Warren wrote such a relatively short opinion in Brown v. Board of Education was that he wanted all nine Justices on-board, and if that meant delaying the implementation to a later decision, he was willing to do it. It mattered to him to get the reticient justices on his opinion precisely because they were seen as sympathetic to the South.
9-0 decisions from a Court full of pragmatic balancers means a lot less. The law would not be stretched to contemplate results suggested by either "conservative" or "liberal" judges. The end result might be the same, but it would be less satisfying.
One Justice O'Connor on the Court is a good thing, especially if she is the deciding vote on a lot of issues and can moderate the extreme swings of her colleagues. But too much Justice O'Connor can be a bad thing.