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August 17, 2005


I'm in agreement on just about every particular. If Roberts is a Trojan horse, he's a Trojan horse who's been quietly groomed for decades, fooling everyone in sight -- the ultimate sleeper cell. I simply don't see how Democrats can unilaterally oppose such a nominee and 1) expect better as a result or 2) expect to be described as anything but that dread epithet "obstructionist". (It'll offer the same image as "Bush must have stolen the election" -- sore loserdom)

This isn't to say I don't suffer grave unhappiness at the thought of Roberts' elevation. He's no one I want making important decisions for the next quarter century. And, had this appointment come up a year or two back, I'd have said fight it, because, to me, Bush had no legitimacy as president, owing to the 2000 electoral filmflam. Now, though, he has -- by the hair on his chinny chin chin -- presidential prerogatives, and selecting a Supreme Court Justice is one of them. I don't think we want to get into the position where the opposition party tries to thwart every single appointment; that way lies chaos, even in the not-too-distant future when I think our side will hold the reins.

I also concur on the advocacy groups thing. I remember reading in What It Takes that Biden thought the liberal groups were counter-productive even during the successful resistance to Bork. They project a sigle-mindedness (bordering on smugness) that I don't think reads well to much of America. But they have a life of their own, and have never shown much willingness to submerge even a smidgen of their immediate agenda to suit long-term Democratic goals (as opposed to the conservative groups, whose tell-me-what-to-do allegiance to the Bush regime approaches Soviet conformity).

Finally, I want to asociate myself with your comment on the commerce clause. For far too many liberals I know (including my wife), the Supreme Court has become about Roe and just about nothing else. It's the quieter damage this court might inflict that I fear most deeply. Remember the trouble FDR had with his conservative court? A Democratic president trying to dig out of the Bush mess -- even with a like-minded Congress -- could find similar substantial resistance from this Court, especially with Roberts aboard. I wonder if one day we'll look back on how this battle was framed with the same "Why didn't we see it coming?" attitude that we now take toward the late 90s Monica war vis a vis bin Laden.

I appreciate your analysis, DHinMI. A short note in response to demtom's comment on conservative groups: an exception would be one of the most successful single-issue groups, the NRA, which has achieved GOP allegiance to its agenda. Digby had a good discussion of this a few days back.

Great assessment of the divergent interests of the party and the issue groups. I want to agree with your bottom line, because Roberts’ confirmation sure seems like a fait accompli and I fancy myself a pragmatist. But I'm not completely there…

As you and demtom both noted, how the court sees the commerce clause is maybe the most important, and neglected, aspect of this discussion. Most people have no idea that conditions they've taken for granted all their lives are precisely what the "originalists" want to reverse. Roberts' dissent in the case involving the endangered-species act gives me the same sick feeling as his memo reference to "the so-called 'right to privacy'". Just as I believe that when it comes to privacy, the focus should be on Griswold -- and on the 9th Amendment -- as much as on Roe (indeed, the right’s been talking more about Griswold lately), I think there’s at least a chance that stressing the practical implications of the right’s view of the commerce clause could actually change the dynamic, for Roberts and for future nominees.

My biggest worry about a Justice Roberts is that he will be such a lovely guy to work with, so congenial, so solicitous of his fellows' views, that he'll be able to forge majorities that the pissy Scalia and Thomas never could...for that alone, I'd almost prefer Janice Rogers Brown. (Well, almost…)

Another great TNH post – thanks for the analysis.

The fear of a congenial Scalia is one I share. The question is, though, can one be a nice, empathetic person able to see many sides of an issue, and still say screw you to everyone else, which is what Scalia and Thomas essentially do? I dunno, but I'm inclined to think that over the long haul, as I discussed a while back, the answer becomes no.

And thanks for the comment, and thanks for reading.

Yeah, I actually took some comfort from your earlier post when I read it at the time, and it could certainly apply to Roberts. But he's been in the political thick of it for so long, at a time when judicial philosophy has been so politicized; and so much damage can be done before he comes around...I do hope you're right (and you may well be), but I'm still pushing for a national tutorial on what all this really means for people's daily lives. (Maybe a movie: "It's A Wonderful New Deal"?) But thanks for the reminder of the history -- I'll sleep a little better tonight, at least...

DHinMI-- How do you define oppose? I don't know that it's worthwhile to mount a fillibuster, but I think it would be great if all 44 Democratic Senators voted against him. It won't stop Roberts, but it will send a clear message that he's not what Democrats stand for. I will certainly be urging my Democratic Senators to vote against him.

Bostoniangirl: oppose, as in try to prevent his confirmation. Just voting no won't do anything to prevent his confirmation; to do that they'd have to try a filibuster, or at least try to "Bork" him and pressure some Repubs to also vote no. I don't see either happening. And if he's going to be confirmed, and if he's not obviously unfit for the job (like Abu Gonzales for AG because of the torture memos), I suspect lots of Dems will see the writing on the wall and just cast a yes vote.

In the absence of something worse that what's already come out, I'm guessing that Repub whip count is correct, that there will be fewer than 30 no votes.

That's what I thought you meant by oppose, but I'd still like to see them vote no. I think that that is a sort of opposition too. It's acting like an opposition party by showing that the principles--and that includes judicial philosophies--are not our party's.

I saw Barney Frank at a Downing Street Memo forum and afterwards (because someone else had been talking about it), I said to him "I know that the House has nothing to do with judicial confirmations, but if you talk to the Senators about Judge Roberts, I hope you'll point out that it isn't just about abortion. He agreed that Roberts would be a horrible "right-wing justice. I am particularly concerned by his willingness to sign on to the Hamdan decision. He's willing to allow an extremely expansive view of Presidential power which I find terrifying.

The Supreme Court Nomination Blog has a great rundown < a href="http://www.sctnomination.com/blog/archives/2005/07/analysis_john_r_1.html">here

Right on, Bostoniangirl; in another place and another context, I wrote exactly that about how to define our principles -- and show we HAVE some -- as an opposition party. And incidentally, when the Democrats do that, they're also laying the groundwork to oppose nominees like Roberts and have the country understand why -- and agree.

(And right on, Barney Frank; I'm proud to have voted for him when I was a Bostoniangirl myself...)

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