Good Morning, and Welcome to "Extraordinary Circumstances."

by Kagro X

This morning's chatter is about the possible nomination of Edith Brown Clement to the Supreme Court. So what questions does this raise?

Who is she? Why her? Was she nominated because she's mostly a blank slate? If so, is that because Republicans think she'll get by without close examination if she has no paper trail? And do they want that because they no longer have the muscle to move a nominee who's more demonstrably conservative? And do they lack that muscle because of the nuclear option fight? Or because of what's rapidly becoming known as Rovegate (no matter who ends up taking the fall)?

Would Senate Democrats be taking a risk in opposing her if she's not an obvious reactionary? Wouldn't Senate Democrats be labelled obstructionist no matter what they choose to do? Would a protracted battle over her nomination distract from Rovegate? Would a rapid confirmation fail to distract? Does that mean Democrats hoping to keep Rovegate on the front pages are better served by giving her a pass, particularly if she's got no paper trail?

That's a lot to consider. But to me, the upshot of the sheer number of complicating factors is that one of the unintended consequences of Rovegate is that it may have put us squarely inside the territory identified only as "extraordinary circumstances."

To this point, the assumption among Senate and Court watchers has been that "extraordinary circumstances" describe only the relative nuttiness of the nominee in question, with varying outcomes on the question of how to determine how nutty is too nutty. But the true beauty of the "extraordinary circumstances" phrasing is that nobody knows what it means, or to what circumstances it might be limited. Extraordinary things, after all, are by definition extraordinary. Surely the notion that a president who has lost the confidence of the American people on the question of his capacity for honesty and respect for the law may potentially change the philosophical composition of the nation's highest tribunal and ultimate arbiter of the law represents a circumstance that could be described as extraordinary, if not exactly what the pundits imagined when they contemplated "extraordinary circumstances."

[Update: DemFromCT illustrates just how how much of the people's confidence Bush has lost. "LBJ – Nixon levels, not Reagan – Clinton levels".]

Elections do, of course, have consequences, one of them being that the president may nominate whom he will. Living under an ethical cloud of your own making, however, has consequences too, one of them being that the Senators (of both parties) may reject (or at least ponder for some time) whom they will, for reasons they need not justify to anyone in particular. Democrats may do it because they're not Republicans, and want to make clear that the future of the Court is in the hands of a scofflaw. And Republicans may do it because they are Republicans, but want to make clear that they're not allied with a scofflaw. Another of the consequences of elections, it seems, is that they keep coming around again every few years, and making purely partisan positions particularly uncomfortable to stick to.

To the extent that justification is necessary, Democrats might do well to let observers know early on that while (as Harry Reid wisely says) we don't anticipate a filibuster, when the philosophical outlook of the entire Supreme Court hangs in the balance, special scrutiny is warranted. Doubly so when the nominee is an unknown, rushed through the Senate in an attempt to distract from an embattled and ethically tainted administration's gyrations, themselves designed to escape from a federal investigation into its lack of respect for the letter and spirit of the law. This president has lost the trust of the American people precisely because of that lack of respect for the law, and so yes, our questions about his view of what the law ought to be -- and his nominees views -- are going to take some time to answer

Comments

[jonnybutter]

if she's not an obvious reactionary?

Mimikatz zeroed in on a very pertinent item two threads down:

"Clement joined a dissent that argued that the decision's rationale for protecting the bugs—to preserve the interdependent web of species—bore no relationship to Congress' power to regulate interstate commerce. (GDF Realty Investments v. Norton, 2004)"

The Commerce Clause issue is at the very heart of the Federalist Society's whole program. If this dissent is indicative of her overall view, then she exemplifies Reaction, like Thomas does. I hope the Dems have their extrapolation story-telling machines cranked up.

[Kagro X]

I guess a better question is, "Obvious to whom?" Still, even opposition to an obvious (to everyone) reactionary will bring out the pre-printed "Democrats are obstructionists" press releases. So the question is really whether the risks in opposing anyone at all can be overcome by "extraordinary circumstances."

[Mimikatz]

She seems to have a pretty conservative track record on commerce clause issues. I think this gives the Dems the opportunity to make a reasoned case for why reasonable regulation is good in the area of food and drugs, air, water, toxics, wages and hours and everything else. Things people once really appreciated about the Dems. How much more interdependent the economy was than in 1905, let alone 1789. Done right, it even gives an opportunity to talk about community and caring. Reid is just the guy for this job.

Then, when the questions have been asked and (maybe) answered there is time to decide what procedural tack is the most advantageous.

As I have said elsewhere, the best read on her views on social issues will come from the Dobsonites, who can't afford to lose ANY of Bush's appointments if they are to get their majority.

[jonnybutter]

Mimikatz might really be on to something. There hasn't been a chance - other than Bork, which was a long time ago, and the fight about whom was somewhat anomolous - to really flesh out the implications of the Feddie POV. John and Jane Q. wouldn't like them very much if they knew of them. Maybe this is an opportunity to Ventilate The Feddies, something which is long overdue anyway. Instead of simply screaming red-faced about abortion non-stop, the opposition could talk about the implications of the much more fundamental changes people like Thomas advocate.

I don't know, Kaygro, I lean toward exploiting the fissure that has opened up, making the crack bigger bit by bit. Do it calmly - make it a 'philosophical difference' (which is certainly is) - rather than life-and-death. Don't do ad hominem attacks. Don't say the world is going to end if this judge is confirmed. Say instead that the modern regulatory state - safe food, safe drugs, etc. - is in jeopardy. There is no way that sort of thing is going to be popular if people actually know about it. I know that it's a risk, in terms of the nuclear option, etc., but...the greater risk is a SCOTUS trying to turn back the clock 100+ years. Unlike these federal judges, the GOP pols have to stand for election, many of them pretty soon. The GOP is finally teetering towards going on the defensive for a change. Make them wear lead boots; slow them down; run out the clock. Avalanches grow stone by stone.

These modern Repubs need to be beaten, as it were, globally, and, BTW, with their own cudgels. This might be an opportunity to reveal how objectionable a pillar of Republican rule is, ie, exposing the Feddies for the eccentrics they really are.

[Kagro X]

JB, I'm just not sure whence you divine your differences with me. I haven't yet suggested any basis for objecting to Clement, or anyone else for that matter. What I'm suggesting is that no objection, however well founded, is going to be able to stand alone in a vacuum. Any and all objections, whether they be on the grounds of abortion, the right to privacy, or adherence to the principles of the Federalist Society, are going to have to overcome charges of obstructionism, and possibly even the wielding of "The Deal," in order to even get to the point where the public is given the chance to evaluate those objections on their merits.

The first line of Republican defense won't be on the relative virtues of the philosophy of the Federalist Society, it will be why Democrats have no right to oppose the nominee.

I merely suggest that we have grounds to pry that go beyond the nominees views, whoever it turns out to be, and that "The Deal" is by its terms no impediment to that.

[al-Fubar]

Obviously bugs, per se, would be a loser issue - to most people they're just an annoyance, and the interdependent web of species an obscure abstraction.

Having said that, quizzing her about her understanding of the Commerce Clause should be totally fair game. Moreover, it covers enough ground that it should be easy to construct challenging questions about her philosophy without drawing on any specific cases before the courts (thus denying her the "prejudging litigation" escape hook).

We can take for granted that Republicans will interpret "extraordinary circumstances" as meaning nothing much short of a sex video with Osama. But the question of weakened public confidence in Bush is a meta-issue that shapes the entire playing field. If it comes to another nuclear-option battle, we are in FAR better position than we were when the deal of 14 was struck, and better than we could have anticipated a few weeks ago.

The ultimate bottom line is that the GOP can still go nuclear if they can peel off just two of the 14. However, the political risk for GOP senators of going nuclear is higher now than it was, and could get higher still. Although the grand jury is seated till November, it's conceivable that indictments could come down by September, perhaps even in the middle of confirmation hearings, not to mention the possibility of colorful leaks.

I think the Dem position would be that we don't WANT a filibuster, and don't anticipate one, but we are deeply mindful of the enormous importance of the Supreme Court, and will if necessary exercise our rights under the Constitution and the long-established rules of the Senate.

-- Rick Robinson

[Meteor Blades]

Can't we please please please find something in Brown Clement's background that will enrage the Dobsonites so that they can do some of our heavy lifting for us if she is the nominee?

I assume confirmation of whoever Bush nominates tonight will not mean the end of world because I've seen eight justices appointed (by Nixon, Ford, Reagan and Bush Sr.) who we thought at the time would be the end of us but haven't been. So I try not to think apocalyptically.

But, as one of those folks who joined the ABB crowd in great part because of what damage could be done by two or three or four Bush Jr. appointments to the High Court, I must say the coming nomination(s) agitate me more than most other politics - including Iraq, and certainly including Rovegate, and that's not merely because we'll be getting our fill of the loathsome Orrin Hatch during the hearings.

Whoever gets confirmed for the Court during the next three-and-a-half years could still be making rulings when I'm 90. And those new justices aren't, I surmise, going to turn out to be Blackmuns, O'Connors or, obviously, Souters. How much precedent will a new 5-4 majority be willing to override?

[DHinMI]

When John Engler, current head of the National Manufacturers Association, appointed people to open court seats during his 12 years as Gov of MI, he appointed almost exclusively members in good standing of the Federalist Society. (Engler's buddy, our former Senator Spencer Abraham, was a founder of the first Federalist Society chapter, at Harvard.) If Clement is the appointee, this tells me that Bush apparently sided with "business" on this appointment. Since she's already on record as affirming the right to privacy in regards to abortion, I think she will have to contradict her testimony from 2001, or Bush has a fight with the wingers on his hands.

[DHinMI]

Rick: The GOP probably already has Landrieu; Clement is from LA, and Landrieu and Breaux strongly supported her for Court of Appeals.

[Kagro X]

At this point in the Monica Lewinsky/perjury/obstruction of justice investigation, how many Supreme Court nominees would the Republicans have let the president have? And would the complaint have been about their politics? Or the fitness of a scofflaw president to name Justices?

[Crab Nebula]

Can't wait to hear from the wingnuts. The public description of fundamentalists as a major part of the R coalition now pervades the discussion of the chattering beltway and major media types; next it's necessary to brand the Federalist-corporatist-freemarketfundamentalists.

I favor, in my dreams, that this very public confirmation should be an early road test of at least some of the themes for the next election, i.e. protection of citizens from wrongdoing, by corporations or government or any entity. Let's see if the D message players have it together. The Bai article on the coordination re: SS was encouraging.

[DemFromCT]

Yet again, Kagro, Rs aren't D's.

Rove's Troubles Expose Strategic Drawbacks of a United Front

The testimonials to Karl Rove that flowed from Republicans great and small last week were, above all, a testament to the kind of party that he and President Bush have constructed.

[jonnybutter]

I'm just not sure whence you divine your differences with me.

I don't think I have differences with you. I'm sorry if I come off as mindlessly argumentitive sometimes. My cup runneth over.

Any and all objections...are going to have to overcome charges of obstructionism, and possibly even the wielding of "The Deal," in order to even get to the point where the public is given the chance to evaluate those objections on their merits.

I'm sure you're right. And as you note, the Repubs will charge obstructionism and even wield 'the Deal' no matter what the dems do or say contra. I guess my question is, what does the 'Deal' really mean, then, either way? In this kind of ('Say Anything') environment, what efficacy does any 'procedural' rhetoric really have? That rhetoric only means something to the extent that some Republicans have an investment in the Deal, right? We should be playing chicken with them rather than the other way around, which is kind of what you're suggesting, I guess. I just don't understand why it seems to always be incumbent on Dems to develop an elaborate rationale, whereas the Repubs can all just repeat transparent bullshit, regardless of the facts, history, the Constitution, etc.. Maybe it's because they're in the majority...

I'm really just trying to understand the Senate better than I do. As they might say on the street, it's DEEP.

[Steve]

Some people seem to be under the impression that the Federalist Society has some consistent ideology. In my world it's just a vehicle for conservative lawyers and judges to establish their bona fides and get ahead. I don't think they have to swear fealty to the Constitution in Exile or anything of the sort, although some of them clearly believe in it.

[Mimikatz]

Meteor Blades' link is well worth a read. But even if Edith Brown called Roe settled law during her confirmation for the Court of Appeals, when you are on the Supreme Court you don't have to follow precedent. You ARE the precedent, and lawyers arguing in Supreme Courts remind them of that, as if it was necessary.

But it does create some problems for the Dobsonites, who are apparently being told to sit down and be good children. They have to get some kind of commitment from her, overt or covert, in light of this statement. Maybe she is a Kennedy/O'Connor respect-for-settled-law type and maybe not. But THAT--the issue of precedent--should be the focus of the hearings, and is surely a legitimate line of questioning by anyone's reasoning. And the Dobsonites give cover to anyonme attacking her on philosophy, as they have been legitimizing that line of attack by their attack on Gonzales.

[al-Fubar]

My impression from CNN Inside Politics (the first 20 minutes, after which I turned it off) is that the buzz was already shifting away from Clement toward someone more red-hot. Of course, that could be throw-off jive to keep up some mystery till this evening.

What's also interesting is that the idea that the nomination was moved up to push Rove out of the news came up within 5 minutes. A few minutes later it was poo-poo'd on the basis of a "trustworthy" source within the WH - but it is definitely in the mix.

-- Rick Robinson

[Kagro X]

Steve: Ha-ha, you're fair. Sucker!

JB: Pass that cup. Maybe I imagined your differences. It's been known to happen. (No, it hasn't!)

[Crab Nebula]

Rick, when's the last time an announcement like this happened late at night? That's an extra news cycle, including the leak. Good idea.