I may get criticized for this, and maybe this isn’t the kind of thing I’m supposed to put in print, but I’m a bit concerned about how Dems and the left in general will approach John Roberts’ Supreme Court nomination.
For me, this is largely a question of pragmatism. We have a conservative president and a Senate with a 55-seat Republican majority. If Dems are to successfully block any Supreme Court nominee, we would first need to keep all 45 Dems together. That is no small feat; the New York Times reported today that Joe Lieberman said before the nomination that that “he was likely to support Mr. Roberts if he was nominated.” Chances are, Lieberman isn’t the only Dem who’d consider breaking ranks.
Putting that aside, even if the caucus was united against a nominee, Dems would need to either a) peel off six Republican votes; or b) successfully filibuster the nominee, while steering clear of the nuclear option. If this isn’t likely to happen, we need to act and plan accordingly. Wasting resources to beat a nominee who is going to win doesn’t make a lot of sense.
I’ve heard from several Dem friends today, many of whom have suggested that Roberts is a nightmare nominee. He’s not. Roberts is a conservative partisan, but he’s not James Dobson with a law degree. Through the course of the confirmation process, it’s certainly possible that damaging and embarrassing revelations will come to light that could put his nomination in jeopardy. If it does, Dems will have a responsibility to take a firm stand. Short of that, however, Dems need to do their due diligence but consider the fact that an all-out judicial war is not only unwise in this case, it’s also likely to fail.
There are certain lines Dems cannot allow Republicans to cross — I don’t think this is one of them.
Does this mean that Dems should roll over and play dead? Give Roberts a free pass? Of course not. I’m suggesting we keep the endgame in mind and make the best of a bad situation.
What would that include? I think Matthew Yglesias is on the right track.
Realistically, it seems that there’s no stopping Roberts unless there turns out to be some kind of serious dirt on him. Nevertheless, I think it’s important for liberals to underscore what’s going on here and what kinds of bad consequences having Justice Roberts on the bench for what’s likely to be a term of several decades will be. A pretty serious undermining of the rights of women is almost certain to be among those consequences.
A Kos diarist is thinking along the same lines.
There are plenty of fights we can win. But there are good losses too, and this is the concept that many refuse to accept. You can lose in a way that makes people sympathize with the principle you fought for. You can lose in a way that sets the stage to make a compelling case later. If you send a clear message to the American people that “we oppose Roberts because X will happen if he is confirmed,” and then X does happen, now you have your campaign issue for 2008, 2012, and beyond. “Elect Democrats so we can roll back X and make sure it never happens again.”
Right now, we haven’t agreed on what X is. It might be Roe v. Wade, it might be destruction of environmental laws and other protections, it might be a lot of things. I will guarantee you this: if the Dems don’t settle on a unified message, if it ends up being the same old shotgun approach that “Roberts will outlaw abortion, birth control, favor corporations over people, destroy the environment, reverse the civil rights movement, etc.” it’s not going to get us anywhere. We need a straightforward argument that people can understand, and we can use in future elections, not a boundless rant that says Roberts is the spawn of Satan who will destroy everything good about America. Fortunately, we have over a month before the confirmation hearings, time we can use to get the message straight.
From where I sit, Step 1 is honestly assessing whether the fight can be won. If “no,” Step 2 is maximizing the benefit of defeat.
Critics may suggest that this approach implicitly argues that Roberts is “not that bad.” There’s some truth to this. When Bork was nominated, Dems knew immediately that he was beyond the pale and his fanaticism would be enough to defeat him with Republican allies. Likewise, had Bush nominated Janice Rogers Brown last night, we’d have reason to be apoplectic this morning.
Ultimately, however, if we’re not going to peel off six Republican votes and/or successfully filibuster Roberts, we should prepare for the confirmation hearings accordingly.
Post Script: Keep in mind, this is Bush’s first Supreme Court nominee — but it’s probably not his last. If Dems go after Roberts with a vengeance, and Rehnquist’s replacement is even worse than Roberts, we’ll be less credible when criticizing him or her. Something else to consider.