So Sen. Harry Reid (D-Nev.), the Democratic leader, has announced that he intends to vote against the confirmation of John Roberts for Chief Justice. The liberal interest groups that have raised and spent gobs of money in an almost-certainly quixotic bid to defeat Roberts’ nomination are, of course, ecstatic.
But, as I’ve said a million times already, this nomination doesn’t matter NEARLY as much as the next one, Chief or no Chief. John Roberts is replacing the extremely conservative William Rehnquist. He simply cannot move the Court very far to the right – most likely, in fact, he will move it slightly to the left. Sandra Day O’Connor’s replacement, on the other hand, can cause a huge shift in the Court.
I had dinner with a friend last night who had a very interesting suggestion for how the Democrats might maximize their leverage on the next nomination. What if the Democrats announced that they would vote IN FAVOR of Roberts, en masse, for three reasons:
- Roberts is extraordinarily well qualified, seems to personify "judicial temperament," and expresses modesty about the judicial role.
- Roberts has made specific commitments on several important issues: he has said that he understands the Constitution’s commitment to "liberty" to extend beyond physical restraint; he believes that the Constitution contains a right to privacy; he agrees with the result in Griswold v. Connecticut (the marital contraception case); he recognizes that Roe v. Wade is not only long-established precedent but that it has been recently reaffirmed in Casey, and that both of those decisions are entitled to substantial respect under the doctrine of stare decisis; etc.
- Roberts is replacing Chief Justice Rehnquist, and therefore his confirmation will not significantly affect the ideological balance on the Court.
The message to the Republicans would be this:
Look, we are reasonable people, and if the President sends up someone who is well qualified, who has the right temperament, who is committed to preserving important aspects of the law as it exists today, and who is not likely to cause a seismic shift on the Court, we will support him or her, even if that person is far more conservative than we would like. However, be advised that when the President announces his nominee to replace Justice O’Connor, he can expect support from Democrats only if those same three conditions – qualifications/temperament, specific commitments, and no seismic shift – are met. If the next nominee does not meet those conditions, look for a filibuster.
It should be obvious by now that I think my friend’s strategy is a pretty good one.
Bottom line: I have ended up where I started when all of this began. This nomination could have been so very much worse, particularly since Roberts is now replacing Rehnquist instead of O’Connor. And Democrats cannot afford to be perceived as being opposed to anyone that Bush nominates (this is a serious danger: a commenter on this post reports that he received a fundraising letter from NARAL before Roberts was nominated asking for money to be used in opposing whoever Bush named). If Democrats want to be able to win a filibuster fight on the next nomination, they will need A LOT of political capital, and A LOT of public support. They are much more likely to have the capital and the support they need for that fight if they look reasonable on this one.
I’ve read & heard this same argument from multiple sources, and I don’t agree with it.1)No one is talking about filabustering the Roberts nomination. Only about voting and voting their conscious.2)Even if EVERY Democrat votes no, Roberts will still be confirmed.3)The idea that a YES vote on Roberts will somehow purchase some spendable political capital, to be used over the next nomination vote, is simply naive. And worse, look what such strategy netted Dems when voting to give Bush the authority to invade Iraq, based on Bush lies then, and Roberts lack of candor now It’s a parallel.Reid is correct.
David, you are to reasonable, and do not demonize the other side. Hmmmmm, I don’t think you belong on this blog.
DA, with respect, I don’t think your arguments add up.Even if EVERY Democrat votes no, Roberts will still be confirmedRight – therein lies the essential problem of being a minority party. So at the end of the day, what is the point of voting “no”? To “send a message” to Bush? But what message is being sent, and who is there to receive it? To mollify the “base”? But again, who cares – the vote is an empty gesture, right?No one is talking about filabustering the Roberts nominationSo here’s the problem. Either the Dems are willing to accept Roberts on the Court, or they aren’t. If they’re not, they should filibuster, because that’s the only way to keep him off. If they are, then, like I said before, why vote “no” when voting “yes” will, in my view, have a better long-term effect?The idea that a YES vote on Roberts will somehow purchase some spendable political capital, to be used over the next nomination vote, is simply naive.Here I simply do not agree with you. The reason the Dems were going to win the “nuclear option” fight last time – and they were going to win it, either in the Senate or in the ballot box – is because they had established themselves in the public’s eye as the “reasonable” ones, and the Republicans had been marginalized. Voting “yes” on Roberts in the way that I have described would be a tremendous step toward laying that same sort of groundwork for a filibuster on the O’Connor nomination, which may well be necessary. THE NEXT FIGHT IS THE ONE THAT MATTERS, AND IT IS WINNABLE. Bush is weak; many Americans are a little spooked by the Senate Republicans; and the Dems are in an excellent position to position themselves as the mainstream party (which they in fact are). But they MUST lay the groundwork, because we all know that the Republican machine will kick into overdrive as soon as Bush announces his next nomination. If we wait until then to start, it may be too late.
the point of voting no is that when Roberts signs an incredibly unpopular ruling overturning environmental laws (or something like that), our side can say, “see? i told you so!”on the other hand if most Dem. senators vote yes on Roberts, what will they say when one conservative ruling after another is handed down: “I voted for him, but I disagree with his rulings”? “I voted for him, but as President I would nominate someone else”?sounds a little like “I actually voted for the $87 billion before I voted against it”, doesn’t it? the point is to be able to say with a straight face later on that we’ve always been for environmental protections and the right to choose, come hell or high water.there is also the non-trivial point that Dems. are kicking Republicans senseless in Senate fundraising this year, due largely to standing up to Bush on Social Security and the nuclear option. it’s important for the Dem. “base” to perceive the senators as standing up for their core beliefs so that they continue to donate, volunteer, and otherwise support Senate Dems. a large contingent of Dem. senators voting yes will be a really big setback along these lines.
David – you are herding cats.A vote on Social Security is NOT an equivalet to a confirmation vote. Dems cannot allow themselves to be seen as civil in discourse with the MAJORITY, but will continue their current petulent children behaviour, unable to grasp that a majority of the nation doesn’t belong to their base. Rather like the way Michael Moore helped out with Ferenheit 9/11, which did more for Republican fundraising than Ken Mehlman ever could.By the way, Shai, the Chief Justice signs every opinion, no matter how s/he voted. So your future Senator will look like a braying ass when s/he makes that assertion. ‘See, I told you so’ isn’t very Senatorial – they ten to avoid a nyah-nyah factor. Or at least they USED to before Reid became leader.
the Chief Justice signs every opinion, no matter how s/he votedThat’s not correct, actually – the Chief Justice’s votes work the same as everyone else’s, and if he doesn’t agree with the majority, he joins a dissenting opinion or writes his own. Example 1. Example 2.