Democrats for Roberts, and the Contrast Principle

If you always smile, nobody will know when you're  happy. Always frown, and nobody knows when you're sad. And if you shout all the time, how will anybody know when you're really outraged?

Judge Roberts will soon be confirmed as Chief Justice, with many Democratic 'Aye' votes ... and so there is wailing and gnashing of teeth and rending of garments in progressive quarters.

Are our frantic exhortations all for naught? Are our party leaders utterly lacking in brains, or hearts, or spines, or testicles, or situational awareness, or moral compasses? Are they lost in the beltway bubble? Have they sold us out? Is there no hope? Are we doing something wrong? Are we doing everything wrong? Doesn't anybody listen -- the voters? The media? Elected officials? Doesn't anybody care?

The psychic torment is genuine, but our message is undeliverable, our anguish is misplaced, nobody cares -- and it's OK.

There's an epic performance in progress on the stage of US history, but we're not actors in this drama. We're not even in the intended audience. Neither are the media, the interest groups, the voting publics of 2006 or 2008 (with limited exceptions) ... nor (with very limited exceptions) are most members of the Senate, of either party.

Hint: the people who should care already do care. The people who need to "get it" already get it. Why don't our leaders pull out all the stops against Roberts? Because they care, and because they get it.

The thigh bone's connected to the knee bone, the knee bone's connected to the shin bone, and there is intelligence to this strategic design. It's been inaptly described as "keeping our powder dry" ... but it's really a matter of signal contrast.

Begin with Chuck Schumer's "devil's bargain" (my paraphrase):

What would you have paid the Devil, at the start of his presidency, for a guarantee that Bush would leave SCOTUS no worse than he found it? A lot, probably. So far, Roberts is no worse than Rehnquist ... just younger, plausibly more circumspect, and a stronger counter to Scalia's dominant intellect.

And O'Connor's 5-4 swing seat is still in play.

Barring some jarring disclosure, Roberts was going to be confirmed no matter how many Senate D's showed off their balls to excite the crowd. The next nomination is the one that counts. It counts big, and it could go either way.

[By "either way", I don't mean Bush's next nominee voted up or voted down. I mean the difference between a Thomas and an O'Connor, between a filibuster sustained or busted, between a Nuclear Option detonated or defused.]

What does it take to break even with the lousy hand we've been dealt? That's where signal contrast comes in. Shhhh! There is a performance in progress, and the critical audience is a mere handful of conservative and/or pro-life Senate Democrats (with word-of-mouth buzz to a handful of moderate and/or institutionalist Senate Republicans).

The next nominee -- whoever he or she may be -- will receive every Republican vote. Our only stopper is the filibuster.

Democrats start with  38 seats outside the anti-nuclear 7+7 Our Gang Comity compact. To sustain a filibuster we must hold all 38 votes, and then find a way to get to 41. (Or 42 for a margin of safety, and to forestall unbearable pressure on #41.)

We've got nothing unless the Gang of Fourteen breaks ranks.

They'll need strong reasons -- "extraordinary circumstances", and then some -- to vote against cloture. In some cases, this vote will run counter to their personal and principled (conservative, pro-life or institutional) convictions.

To move these votes, leadership and the caucus majority must emphasize the intensity of their principled opposition ... and by extension, the intensity of repercussions within the caucus, and in the party activist core, and in a post-2006 Senate.

If 35 D's vote 'Nay' on Roberts, there's no space to the left for a contrasting message on (say) a Janice Rogers Brown. No contrast, no message. No message, no impact.

But 17 Nay's on Roberts would define a baseline from which 37 Nay's would project a contrasting signal to the attention of Democrats #38, 39, 40, 41, and 42.

If 30-plus Dem's vote against Roberts, they will win our approval ... but it means we've already conceded the next round.

If we sell out to the bare walls now, the other side knows exactly what we've got ... and we lose both the potential  for contrast and the marginal advantage of strategic ambiguity. That's what we've got. That's ALL we've got, and if we give it up, there's no burden of guesswork on the other side. Done deal, on their terms.

Next time, we could still fail to deter the worst possible nomination. We could fail to mount and sustain a filibuster. We could be outgunned in a Nuclear Option showdown.

But at least we've dragged the showdown down the calendar ... where W's numbers suck worse than ever, Frist is a lame duck, McConnell is sore that his brother didn't get the call, conference chair Santorum has already broken ranks, there's a ton of unfinished budget business on the calendar, and members are looking ahead to next year on the hustings. [Correction: McConnell is not McConnell's brother, and I'm a monkey's uncle!]

So it's high drama, with possible surprise endings. We're not in the show. We're not in the intended audience. And -- Shhhhhh!!! -- the curtain is about to go up on Act II.

Comments

[DemFromCT]

Thanks for making sense out of this. It certainly didn't make sense before.

[mamayaga]

It had ocurred to me that Leahy and Feingold drew the short straws to give the Gang of 7 the cover to vote No next time...

[emptywheel]

Feingold likely voted his conscience--was there anything about Roberts egregious enough to make Feingold depart from his well-established belief that Presidents should get who they want?

But Leahy, yeah, there was some kind of deal for Leahy's vote. But I'm not sure it was signed with Democrats. Rather, I suspect it was a deal signed with Specter. Given Specter's repeated inability to deliver on his attempts at compromise, I hope Leahy knows what he's doing.

[DemFromCT]

feingold almost always defers to the exec on appointments.

[Petey]

RonK's analysis is spot on.

The unknown variable to me is whether Rove/Bush want a fight, or don't want a fight.

All the recent discontent on the right would indicate that he should want a fight. But a President with 40% approval ratings doesn't need a fight.

Between a rock and a hard place...

[Petey]

"But Leahy, yeah, there was some kind of deal for Leahy's vote. But I'm not sure it was signed with Democrats. Rather, I suspect it was a deal signed with Specter."

Leahy's announcement came immediately after a WH meeting with Bush & Specter.

[YK]

Wow, that does make sense. I hadn't really appreciated that it is the Gang of 14, not Bill Frist, who now controls the nuclear option.

[Kagro X]

To me, I still see significant daylight between a loud "no" and a quiet one. Such that quietly showing up and casting a "no" vote and moving on leaves leverage for a louder protest, backed by a filibuster threat next time around.

And I think it in the interest of the Democratic signatories to the deal to declare early and openly that nothing in the agreement forbids a "no" vote. We've already ceded too much of the deal's spin and divination: it sets the bar for crazy; it forbids all filibusters; it can legitimately be policed by Frist.

If the deal is to be read as anything other than an unofficial enshrinement of the nuclear option itself even as between the 14, Democrats must be free to vote "no." Else the deal castrates our Caucus to an even greater extent than first imagined.

[emptywheel]

Thanks for that detail, Petey. I must have missed it. Add that to Leahy's very uncomfortable look when he cast his vote (reminded me of the eunuchs voting for Bolton in the SFRC), and there's definitely a backstory to Leahy's vote.

[Mimikatz]

Thanks for a semi-principles explanation for Leahy's vote.

The fact that Frist is in deep trouoble over his not-quite-legally-blind trust is a big factor here, I would think. If the SEC is investigating him, he might lose his post. Could Lott make a comeback? If someone else gets the nod, could Lott announce he isn't running again?

De Wine seems to me to be a long shot in light of a strong challenge from Hackett. I would think he can't afford to tick off the base. Remember their campaign against his son? And the fact that contributions to the RNCC fall off after the nuclear option died? He may want to move to the middle, but how can he? They will just sit on their hands. Snowe is the only possible one, if she has decided not to run again.

The most likely Dem for us to get would seem to be Byrd. Wasn't Inoye a signatory? Maybe Liebernam, depending on the nominee. Not Pryor. Maybe Landrieu, if she feels LA is getting screwed. Can't remember the other two.

[Meteor Blades]

If you'd told me this a week ago, RonK, as I am sure you know, I would have rhetorically ripped you a new one. Because I wanted in the worst way a filibuster of Roberts and any nominee like him.

But you make perfect sense. So now you've got me actually pulling for more "aye" votes on Roberts.

Obviously, whether I will feel good about this ultimately all depends on what they do after they vote "aye." If your analysis is right, they've already got the ammunition they need, "extraordinary circumstances." Replacing two Justices nearly simultaneously qualifies as such.

Some of the definitely "aye" Senators have hinted at this themselves: O'Connor's replacement must not be like Rehnquist's replacement, cannot be another John Roberts, because that would unbalance the Supreme Court, would say "screw you" to the American people, who by their votes over the past decade have shown themselves to pretty much evenly divided, just as the Senate and House are evenly divided, just as the results of the past two presidential contests have been pretty evenly divided.

Just as the Supreme Court is pretty much evenly divided.

It will be easier for those Democrats who vote FOR John Roberts to tell Mr. Bush not to send them a Next Nominee like the one they just OKed. We're willing to go along with your choice, they can say, if you send us someone like Sandra Day O'Connor, a centrist with a clear record of centrism, not a rightwing ideologue or someone whose record we can't examine. If you're not reasonable in your choice of Next Nominee, if you behave as you have so often in the past, then we're going to shoot down your next choice, even if we have to talk that nomination to death with a filibuster.

That's a message that would resonate with the majority of the Americans, show not only that the Democrats have spine but also that they've got some tactical savvy.

Of course, Bush will likely ignore them, just as he has ignored them his entire time in the White House. If and when that happens, they'll have to make good on their promise not to let him get his way. I hope some of them are dusting off their Shakespeare and encyclopedias so they'll have something to read on the Senate floor during those long hours at the podium.

[RonK Seattle]

Mimikatz -- Schumer (a week ago) named Nelson (NE) and Pryor among susceptible targets.

[Petey]

"Mimikatz -- Schumer (a week ago) named Nelson (NE) and Pryor among susceptible targets."

Assuming Bush sends up a confrontational nominee...

If I were Harry Reid, I'd let Ben Nelson and Conrad vote their interests, since they've got elections in deep red states coming up.

But aside from those two, everyone else has to vote against cloture. Byrd and Lieberman will go with leadership. Landrieu and Pryor have to suck it up and take one for the team. Salazar also should be on the team, but he scares me as being too much of a flake. This would be his moment of truth.

And so you've got 42 or 43 votes. The filibuster holds.

And at that point we win. It doesn't matter if they get the 50 votes and go nuclear. It doesn't matter if they fail to get the 50 votes and the nomination fails. We win politically either way. And we show ourselves we can maintain party discipline, which will pay off down the line.

[emptypockets]

MB, a modern day filibusterer need not read from the dictionary. Take a Blackberry to the podium and read the live blogging of your own filibuster. I'd love to see that.

[Kagro X]

Paul Weyrich knows the game's afoot.

But how could you not? RonK has told us what's up.

The show we have been witnessing, where Democrat after Democrat has come out in favor of Judge John G. Roberts, Jr. for Chief Justice, is just a game. They knew Roberts had the votes to be confirmed. They knew in his case the Gang of 14 was holding firm so there would be no filibuster. So they couldn'€™t stop Roberts although they would have liked to. What to do? The Minority Leader and hard-core liberals will vote no, thus satisfying the base of their party. The others are piously saying that they will reluctantly support Roberts, who looks at this stage to be getting confirmed by at least 70-30. That way they seem reasonable. That way they don'€™t seem partisan.

And what happens then? Weyrich knows that, too.

But how could you not? I told you what's up.

At that point Bush and Frist have one last shot. Frist can detonate the Constitutional Option which will change the rules in the middle of the session to insure that federal judicial nominees can get confirmed with 51 votes and not the 60 votes required to overcome a filibuster. Senator Lindsay O. Graham (R-SC) has said he will return to the fold if the Bush nominee is qualified and the Democrats filibuster. Likewise Senator Michael DeWine (R-OH). Senator John W. Warner (R-VA) has said maybe he will return. Even Senator John McCain, who put the Gang of 14 together, and who had come out swinging against the Constitutional Option, has suggested there was a chance he might return to the fold.

But look who Weyrich says is back in the undecided column:

Senator Trent Lott (R-MS), an expert on the Senate Rules, says he isnâ't sure which way he will vote on this issue. Lott carries weight. If he votes no he is likely to take a number of Senators with him.

And where did you read about how bad Lott wants to screw Frist?

Now, is there anything we can do to break up the freakish and disturbing mind meld with Weyrich?

[Ben Masel]

Judiciary Committee: 10 Republicans, 8 Democrats. With Specter and the 8 Dems, you've got enough to keep a Nomination from even reaching the floor, no nuclear option.

Specter, Lehy, and Feingold got together in private to draft the PATRIOT ACT renewal compromise which passed both the Committee and then the Senate unanimously. They're working togethr on this.

[Kagro X]

Frist can have his nuclear option if he wants it, no? Discharge the committee?

Of course, that carries its own risks, like losing Senate traditionalists. Or becoming the definition of "extraordinary circumstances." Or getting Specter to take the place of a defector from the Gang of 14.

The only question will be how many there are.

[RonK Seattle]

Ben Masel -- Yes, I believe there is a low-key, bipartisan, anti-wacko caucus ... probably "the establishment" getting ready for X.

Specter's chairmanship probably hangs by a thread ... but snip that thread, and who kows what else comes unraveled?

"X"? That's what comes after W.

[Meteor Blades]

Since I first wrote about Paul Weyrich in 1974 when he was going after Pat Schroeder at the behest of Joe Coors as part of one the Committee for the Survival of a Free Congress, I'd always considered him a bellwether of what the hard right movement was thinking, planning, proposing. But Weyrich's analyses seem to have suffered a great deal of late from a lack of connectedness to reality. Still, his comments above offer some additional weight to RonK's analysis.