Sunday Discussion Group

September 18, 2005

Barring some bizarre development in the next few days, John Roberts Jr. will be the next Chief Justice of the Supreme Court. Defeating him was always a long shot — with 55 Republican senators, Dems would have to keep party unity while also peeling away six GOP lawmakers — and the dull and largely predictable confirmation hearings only served to solidify Roberts’ chances.

The result of the final vote may be a foregone conclusion, but the vote itself is not. How should Dems vote?

There are at least two principal schools of thought here, when considering the Roberts vote from a purely partisan/strategic perspective:

* Vote against him — Roberts is far more right wing than he’s letting on, which is why he refused to offer any substantive answers during his confirmation hearings. Letting him sail onto the court with bi-partisan support sets an awful precedent: hide relevant documents, bob and weave through your hearings, and you can still make it onto the high court. If Dems vote in large numbers against him, they’ll be sending a message to the White House — this nominee is unworthy of support, and if the next one is worse, the filibuster is still on the table.

* Vote for him — Roberts is conservative, but there were hints of moderation during the hearings. Even some of his right-wing supporters hesitated as Roberts kinda sorta recognized a right to privacy. (It’s led some critics to acknowledge that he doesn’t seem cast from the strict-constructionist mold of Antonin Scalia.) With this in mind, if Dems vote against him in large numbers, they’ll appear petty and reflexively partisan. If Dems vote for Roberts now, it’ll give them more credibility if and when they have to wage a serious fight over Bush’s next nominee. (“We approved Roberts because he’s qualified and within the mainstream; this second nominee, however, is not. We’ve been cooperative, but the president has gone too far this time….”)

If you’re advising the caucus on strategy, what’s your call?

I think it’s going to come down to individual members’ particular situation. Some senators from red states up for reelection next year may feel the need to vote for him. In the end, however, I don’t think it’s going to matter how they vote. It doesn’t strike me as a particularly potent campaign issue. But I’ve been wrong many times before. It’s the next one that has me more concerned. If it’s someone to the right of Robert Bork, then I would hope that the caucus sticks together. So, my advise to the caucus would be to vote as you see fit on this one but party discipline will be REQUIRED next time.

  • Vote against. There’s no practical downside. Does it matter that dems are painted as “obstructionits?” It seems most Americans would be happy to have someone obstruct some of the Bush agenda.

  • Not worth filibustering. He replaces Rehnquist so no fundamental change in the political “balance” of the Court.

    Simply vote against along party lines. No downside, and it just shows he’s a political hack.

  • Roberts is a shoo-in, and he knows it. That’s why he was able to thumb his nose at the committee with such “gentlemanly” grace. Save your strength for the next nominee, because you’re going to need everything you’ve got.

  • Vote against — I don’t know why Senators from the opposition party aren’t expected to oppose. I don’t know why every Presidential nomination isn’t voted against en bloc.

    We have political parties — it isnt’ 1804 any more.

    Is John Roberts the candidate that the Senate Democratic caucus would nominate, if it had the power?

    No.

    Then all the members of the caucus vote against him.

    It’s called ‘being in Opposition’.

  • I’m with Smiley.

    Use this as the set up — build up some political capital, some protection against the R’s PR machine — and then on the O’Connor seat unless it is truly a moderate dig in and kill the nomination.

    By letting Roberts go, you have more power in the next round because you can look at the public and the press and say “it isn’t like we oppose everyone; we gave the President his first nominee, but that is not a blank check for him to abuse. He needs to work with us, and if he continues to try and pack the court with right-wing radicals, we have an obligation to defend the vast majority of Americans who believe the Supreme Court should not become a private think-tank for the Pat Robertsons and Paul Wolfowitz’ of the Republican Party.”

    Let Senators vote their own way on this one. Crack the whip as hard as need be on #2.

  • GP is right. Save our energy for a fight we might be able to win. If we vote against him en masse this time, and we raise a fuss against the next guy, the “obstructionist” thing might stick.

  • At this point I feel they have no loss in voting against.
    If they vote for him the public won’t care and by the time the next nomination is made the Bush PR will claim they are obstructing anyway, and they will name a vote farther back, perhaps even the confirmation vote and cite how much stir they caused(what stir you ask, well what about all that media stir before the hearings, nobody knows the difference if they watch the “news”.

    If dems vote against him then at least the party can have some pride. The dems abandoned and hurt their liberal base with the PATRIOT act and by voting for Roberts, despite the motivation, it proves they aren’t up at the hill for the people that elected them, rather for the people that will criticize them next election.

  • Democrats spend too much damn time strategizing. Holding strategy higher than principles is consistently their greatest weak spot in public opinion. They should believe in something for a change. Just because Roberts is better than the alternatives doesn’t make him good, and you should always vote against bad things.

  • Vote against.

    It is a lot like the Iraq War. If the Roberts nomination turns out to be a disaster for the country, voting for him will make the Democrats,who do so, look like they present no alternative to Bushian policy.

    Vote for — what does that get you?

  • It wouldn’t bother me if they just voted ‘present’. I don’t see where the Dem’s can be credited with a victory, or blamed for a loss. It’s a done deal.

    But, the ‘let’s go along for now’ for now approach, does nothing to set the Dems apart from the repubs. It not only leads to the image of Dems as wimps, it has abetted such fiascos as the war in Iraq and the bankruptcy bill – to name a mere 2.

    I’d like to hear at least on of them say, “Just as Judge Roberts’ evasive answers gave me no specific reason to oppose him, they give me no general reason to support him. Present.”

  • Is John Roberts the candidate that the Senate Democratic caucus would nominate, if it had the power? No. Then all the members of the caucus vote against him. It’s called ‘being in Opposition’.

    That sounds good at first, but it’s not a great idea. If there’s a Dem president, do we want every Republican senator to vote against a SupCt nominee unless he or she is the nominee the GOP would pick? I don’t think so.

  • Amen, Joe W,
    At every opportunity, Dems should
    state the obvious; Bush is crap, the
    GOP is crap, and everything about
    them is crap. Why should the Dems
    go along with crap?
    Forget Roberts Rules of Order. The
    GOP forgot it a long time ago. Just
    tear the crap out of the GOP and
    Bush at every chance.

  • Vote against. He’s going to be bad news for generations (the Dems may not know what he stands for but the Repubs sure do), and—as with the Iraq war vote and the bankruptcy bill—if the Dems don’t take a decisive stand, they can’t make the case that they would be any better. They will share the blame for Roberts’s decisions.

    All my life I’ve told people who say there’s no difference between the Dems and Repubs that it’s the judges that matter. We may get rid of Bush, but Bushism will live on in the courts.

  • This guy in effect replaces Rehquist, who already voted the same way. Replacing Rehnquist with Roberts in itself doesn’t change anything, so I say vote Roberts in and move on.

    The next nominee, however, is the O’Connor replacement, and THAT nominee requires special scrutiny. If I know our man Bush, he’s going to put up someone really messed up like Prissy Owen. That will give the Dems a reason to say screw the Gang of 14 rule, filibuster the hell of ’em until they pick someone acceptable (i.e., pro-privacy rights all the way including supportive of Roe v Wade, Griswold v Conn. and so on) and make ’em eat it at the polls if they don’t. The 2nd slot can stay unfilled all the way to Election Day 2006 for all we care – we can use his nominees against him at the polls (along with the Katrina fiasco, Iraq and everything else). As you suggested, Roberts is mostly a done deal, and Dems need to save their ammo for the other guy – that’s where the fight needs to take place.

    BTW, I say any Dem who volunteers to “compromise” and join any form of the GOP-slanted Congressional Committee on Katrina (listening, Senator Lieberman?) should have all of his/her committee assignments revoked and forced to face a primary foe next year. The public supports an independent commission by over 70%, so the numbers are on our side and so is the truth.

  • Vote for him. As I noted in response to Morbo’s post yesterday, Roberts really doesn’t seem that bad. We’re living under a conservative president and a conservative Congress, of course we’re going to get a conservative judicial nominee. But, in the absence of any particilarly damning evidence against Roberts aside from the fact that he worked for the Reagan administration, it’s going to look like nothing more than sour grapes if Democrats line up against him.

    In response to Davis and Semper, the problem with looking like obstructionists is that we shouldn’t *be* obstructionists, in the sense of opposing every one of the Bush administration’s projects just for the sake of being a pain in the ass. Democrats’ role as the “opposition” should not devolve into a blind, knee-jerk resistance to everything the Republicans propose. Remembering the story of the boy who cried wolf, Democrats should cooperate with the adminsitration to the extent possible to reach acceptable compromise, and line up a unified, solid resistance whenever the administration crosses too far over the line.

    I have seen nothing to suggest that Roberts is not a qualified and acceptable conservative nominee. Opposing his appointment to the court would only undermine Democrats’ credibility, perhaps playing right into Bush’s hands when his next nominee is truly a right-wing fanatic. Let’s save our trump cards until we really need to play them.

  • Vote for him. The only real problem I’ve seen with John Roberts is that he is conservative. That’s not enough to vote against a candidate, I think, if he’s qualified (and Roberts is). Also, he’s not a knee-jerk conservative like Scalia. Also, I agree with everyone who says that a vote against Roberts would simply undermine the Dems credibility.

  • Abstain. If the Administration won’t provide the supporting background necessary for advise and consent, then the Dems should send a signal by withholding their vote.

  • I agree with Smiley, zeitgeist, and JoeW. The Democrats should keep their powder dry for the next round. Now is not the time to get one’s “tit caught in the ringer” (early washing machine reference). The time will come to “pull out all the stops” (reference to unfettering the sound of a large pipe organ). You see, working with mercury makes you as “mad as a hatter.”

  • Because Roberts has only two years of experience as a judge, I would advise to vote against him. Given all of the other issues we’ve seen with this administration’s lack of experience in critical positions, I think it would send a worthy and necessary vote of protest to send up a “nay” on Roberts. He has no business being Chief Justice of the U.S. Supreme Court.

  • I’m with Andy – abstain on the grounds that they weren’t given enough information to make an informed vote.

    Then hammer on that point, again and again. Do a “Bolton” without the actual filibuster.

  • I’d like to see 45 “nays,” but I could live with 45 absentions. There’s no reason to vote for him or against him.

  • Vote for:

    His vote is not the place to make a stand. If the Dems do, they will fail, and when they do, there will be no reason for Bush & Co. to avoid going as far to the right as they choose.

    More significantly, I feel very strongly that Roberts may start right of center but will move towards the left over time. I’m much more relieved that he and not Scalia or Thomas will end up as Chief…

  • I would also add that abstaining is voting no in a different color and again encourages an even further reach to the right for the next candidate. Ultimately, I’m just convinced that he will end up well left of Rehnquist. I’ll be the first to admit when and if I’m wrong…

  • Dan,

    It may be wishful thinking, but I suspect you’re right. It’s hard to imagine Rehnquist ever doing pro bono legal work in support of gay rights.

  • The only reason to oppose Roberts appointment as Chief Justice which might have any traction with the greater populace is his lack of judicial experience. The guy’s only been a appelate judge for 2 freaking years and now he’s come from nowhere to be Chief Justice of the SCOTUS ? A lifetime appointment ? I can’t even think of a business world parallel. In fact, in light of the Chertoff/Brown/Katrina debacle we might, maybe, possibly be able to peel off a couple of moderate GOP votes as well, but not enough to prevent Robert’s confirmation.

    And the unfortunate truth is there was nothing in his answers, and even his evasions, to disqualify the man. Yes, he’s a conservative, but he doesn’t come across as a wingnut conservative, and he’s replacing a conservative justice. The Rethugs can rightly make the claim that Roberts succeeding Rehnquist will preserve the Court’s ideological makeup. Let’s be honest, if anything he’s got to be an improvement over Rehnquist.

    I say unless we can make a convincing case that Robert’s lack of judicial experience disqualifies him from being Chief Justice, the Dems might as well vote for him. The Dems should even point out that this appointment maintains the court’s current ideological balance. We’ll build some political capital. Our demands that Justice O’Connor be replaced by another moderate in order to maintain the status quo will ring true with the same people who are only now growing disgusted with Dumbya. And when the Shrub nominates a conservative to succeed O’Connor people will see which party is being reasonable and which party is out of touch with the mainstream.

  • For those arguing that Roberts doesn’t have enough experience as a judge, Earl Warren was never a judge at any level before he was appointed to the Supreme Court. I think there are other examples as well. He’s also a classic example of someone “liberalizing” once on the Supreme Court. I’m not an expert on these things but I know about wikipedia:

    http://en.wikipedia.org/wiki/Earl_Warren

    There is precedent. Just sayin…

  • Great discussion. Valid points all around. There are two distinct ideas floating around here:

    1. Voting based on whether you approve of him as an acceptible judge or not.
    2. Voting based on the political statement you want to make to the president, the party, and the country.

    I think that The Carpetbagger’s original question was closer #2 than #1, though obviously for most Senators it will be some combination of the two.

    On #2 specifically, It will probably come down to individual Senators’ needs. as smiley pointed out. But, in addition to whether they’re representing “blue” or “red” states, another factor might be the senators’ AGE and, by proxy, future political ambitions.

    A young guy with a future, like, say, Obama, might have reason to consider how his vote will or will not be used against him in upcoming political campaigns. Sens like Kennedy or Levin, say, are less constrained. Of course, that’s a pretty lame and transparent way to cast a vote. Kinda sounds like something John Kerry might do (sorry, I had to…).

    I think in the end it’ll probably split the Dem caucus, with Roberts getting confirmed along the lines of a 66-34 vote or something like that. Relatively divisive for a Sup Court nominee, but still “bipartisan” enough for it not to be rancorous . So what statement does that make?

  • Vote against.

    Roberts refused to answer questions that previous nominees had no problems answering. He has authored opinions against personal rights in a variety of issues. He made a ruling favorable to Bush while being considered for the Court. Bush refused to provide more recent documents that might help to understand Roberts reasoning. Finally, how many wealthy, white men do we need on the court?

    You are buying into the argument that this appointment has to be for Chief Justice. Why doesn’t Bush show his good faith by making this a moderate appointment and saving the conservative appointment for his next one? There is no reason to believe that the next appointment will be any less conservative. If the democrats vote for Roberts there is no reason to believe that Bush will not keep bullying and intimidating them.

  • Against. All Democrat opposition is labeled “obstructionist” anyway so I can’t see how a “for” vote helps at all.

  • I’ve thought this through all day and have come to the conclussion that it doesn’t matter. Vote as a block, vote their concience, vote “Free Tibet”…

    The right thing to do would have been to fillibuster Roberts until the GOP agreed to a proper investigation of the Katrina failure and proper checks and balances for the rebuild spending.

    Most Amercans who still have brains could understand that. We can’t afford to run two wars and a $200B rebuild with Iraq corruption. We also have to properly prepare for homeland security (isn’t that what the Goopers have been chanting for years?)

    “We understand the importance of filling a supreme court vacancy, but is there really anything more important than securing our homeland against terrorist attacks and spending hundreds of billions of dollars we must largely borrow wisely? We understand that the GOP has its own priorties, such as attempting to pass a massive tax break on the wealthiest handful of Americans the week after Katrina hit, but, although we are the minority, we are still duty bound as Senators to represent the interests of the people who elected us. We believe that those people, who are, in fact, more than 1/2 the population of the country, will understand that we are acting on principle on the single most important event in American history since 9/11…”

    Standing on principle because Roberts is a pompous turd, or rolling over to set the stage for another stand on principle (that will probably never happen anyway) is moot. Things always have more impact when the right thing for the country and the right thing politically coincide.

    -jjf

  • Fitz, I’ve gotta say I totally disagree with you on the idea of fillibustering Roberts for a Katrina independent investigation. The two have nothing to do with each other. To be blunt, doing something like that would totally unfair to Judge Roberts. It would also make the Democrats look more than a bit whiny. I think such a view would be wrong, and I think an independent investigation would be best, but don’t bring John Roberts into it.

  • Let him in and may be in a few years he will come out, Roberts will be our first openly homosexual Chief Justice.

  • The main thing I wanted to see was for him to get smacked around in committee. I got that–even Specter roughed him up quite a bit.

    We’ve already sent our message there–I say let the guy go–but let it be known that when O’Connor’s replacement shows up, s/he won’t get off so lightly next time.

  • Jeez. Vote him in. The Dems want someone else nominated? Shoulda nominated someone other than Kerry. Busch could have been beaten both times (electorally AND popularly) with better Dem candidates.

    The guy is qualified. Get him in and get this over.

  • Filibuster until the White House releases all relevant docments. That sends a message that the U.S. Senate has an equal role to the president in putting justices on the Supreme Court and is not to be trifled with.

  • Prince:

    We can agree to disagree, but a couple of points:

    1. They do have something in common, they are Senate business.

    Forget politics, think about the future of every child living in the united states today. What matters more to their security and properity, a few additional months of vacancies on the court – or another $200B in waste and corruption on their national credit card?

    They swore an oath, they take the money and power – using every mechanism at their disposal to protect the country from more whitewashed evil would seem, to me, to be an opp. Senate obligation.

    2. The idea that this would be unfair to Roberts strikes me as silly.

    Roberts is up for a lifetime gig of indirect wealth and direct power over millions of lives. He knows this, that is why he was interviewing for the job while he had gov business before his court.

    What about fairness to the American people? It seems to me that being fair to the hundreds, possibly thousands, of American’s who needlessly lost their lives is a higher priority than making sure that Roberts gets to take up a more powerful position ASAP. Besides, on Chris Mathews last night even the political hacks all conceded that we really have no clue about what kind of person Roberts is, thanks to the orchestrated confirmation hearings.

    Again, how on earth was this fair to the American people? We have to pay this guy’s salary for life and he has no paper trail as a judge and got largely a pass in hearings.

    -jjf

  • You have to vote for Roberts. The man knows the law as well as anyone and understands the court. He is not my first choice but the sense I got from his answers last week was that he had great respect for the court and the law. The job of the Senate is to make sure the guy is qualified not to make sure he agrees with everything you do. Even if he stood up and shouted “baby-killer” and “you can have my gun when you pry it from my cold dead fingers” he can be voted against for being unstable but not for holding personal positions.

    This guy has a chace to be in the history books as a Supreme Court GIANT. He will own the court for decades. You do not get to where Roberts is by being a blind political partisan or ideologue. He will not march thing off the deep end. A qualifed nominee was presented and he should get yes votes.

    Dems can go home to their districts and tell the people that they did what they had to do based upon the rules of the nomination process. If the voters do not like it then they can turn the Congress and White House over to the Dems and we won’t have this problem anymore.

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