John Roberts picked up the votes of three Democrats on the Senate Judiciary Committee – Leahy (Vt.), Kohl (Wis.), and Feingold (Wis.), along with all of the Republicans, in the Committee’s 13-5 vote to send his nomination to the Senate floor. It seems very likely that the Committee’s vote will mirror what will happen on the Senate floor – slight more than half the Dems voting against, but a substantial minority voting for. Like I said, this strikes me as the worst possible strategy, one that seems calculated to send no message whatsoever, and to stake out no ground for the coming battle over Justice O’Connor’s seat.
In related news, there is a palpable sense of desperation among some of those who have been heatedly urging the Senate Dems to do everything they can (including a filibuster) to prevent Roberts from becoming Chief Justice. Armando at Daily Kos has declared himself a failure and the Democratic party unsalvageable; People For the American Way declares the vote a "defeat for the Constitution and the country" and lambastes the Democrats who voted "yes"; and we can expect more of the same from NARAL and other loud anti-Roberts voices as the news of the Judiciary Committee’s vote and the "defection" of three well-respected Democrats sinks in. (Interestingly, Kos himself disagrees with Armando.)
With all due respect to those who were pushing it, however, I don’t think the "Roberts must be defeated by any means possible" strategy was ever a viable one. He’s just too good a candidate – too smart, too accomplished, too polished, too non-threatening, too convincing in his advocacy of judicial restraint (which he may actually believe in). And it was never realistic to have insisted on the kinds of commitments on specific issues that PFAW et al. wanted – that would have meant asking Bush to nominate a Justice who would move the Court markedly to the left. That was never, ever going to happen.
As I’ve said before, I am disappointed that the Senate Democrats are apparently not going to take some sort of stand on this nomination, either by all voting "yes" with conditions explaining their position on the O’Connor replacement, or all voting "present" to protest the withholding of documents (PFAW’s assertion that the Dems who voted "no" have sent a "message" to other Senators and to the President that nominees have an "obligation" to make commitments on certain issues is, of course, utterly laughable, since Roberts will be easily confirmed without making exactly the commitments that PFAW wanted). This unfortunate situation is, I think, partly the fault of those who loudly opposed Roberts. By never taking seriously the notion that Roberts was as good as we can expect from this President, and by insisting on unrealistic conditions such as a specific commitment to abortion rights, the "no on Roberts" crowd made it very easy for others to paint them as extremists who would be unwilling to accept any Bush nominee, and left Democratic Senators in the impossible position of being seen as "traitors to the cause" if they vote "yes," or as "puppets of the unreasonable special interests" if they vote no. It was, in my view, a huge strategic blunder, and we can only hope that it will not prove significant enough to weaken the Democrats in the coming, much more important, fight over Justice O’Connor’s seat.
UPDATE (9/23): Scot Lehigh gets it.