SCOTUS Strategery, or, You Think Too Much

by Kagro X

I just caught up with reading one of the better analyses of the way the Roberts votes are breaking, over at Daily Kos. Written by diarist LarryInNYC, it posits, among other things, that Dems preparing for the necessity of leading the opposition and/or filibuster against the next nominee are likely "aye" votes, hoping that such a position, "strengthens the Democrat's argument with the seven Republicans who will matter" (i.e., the GOP signatories to the nuclear option deal).

I'm here to tell you that I don't think you've got a shot in hell.

It has long been my opinion that Senators Graham and DeWine are only nominally committed to the deal. That is, they are committed to the part that keeps Democrats from filibustering. The part about preventing the nuclear option? Not so much.

We've seen the nuclear option deal spun unfavorably for Democrats such that the public's understanding of the agreement is variously that any sort of filibuster is prohibited, or that all filibusters of nominations of any kind are prohibited, or even that anybody not quite as crazy as Janice Rogers Brown has to get a pass, a truly stupid meme that Lindsay Graham himself has been complicit in planting. That none of this is true appears to register with almost no one, nevermind Armando's insightful observation that such reasoning makes it just as plausible that Henry Saad and Bill Myers are the new standard for crazy.

To the extent that Senate Dems casting "aye" votes are playing to the audience of the Republican Seven, I believe their appeals will fall on deaf ears in the case of Graham and DeWine, and very possibly McCain and Warner, as well. That leaves a filibuster susceptible to defeat by the nuclear option.

The bad news I have to deliver to the Democrats who believe the Republicans can be reasoned with is well-encapsulated by an image found over at The Stakeholder, where it's displayed as an example of the direct e-mail campaigns the NRCC (their DCCC) has been conducting.

I'll share it with you, below:

That's what I'm talking about. Senators, do you think those ads aren't going to continue because you've "been reasonable" in the past? It's not even a question of "what have you done for me lately?" It won't matter whether you did it or not. This, and ads like it, will run in your states, whether you vote for Roberts or not. In fact, whether you vote -- or filibuster -- the next nominee or not. And as I've warned before, it's going to be you, the likely "aye" voters hoping to appear "reasonable", who are targeted for retaliation by the GOP, anyway. Why? Because it's so damned easy, that's why! That it doesn't make logical sense is something we in the reality-based community can spend time pondering, while Republicans give you the old Max Cleland treatment. You didn't vote against Roberts after all, you say? You were "reasonable," you say? Oh well, you can always frame the retraction for your office wall, sucker. You'll find it on page B22.

Comments

[Steve]

The logical question is, if the GOP Senators in the Group of 14 are so uncommited to the deal, why did they make it in the first place? Why not just go through with the nuclear option, get ALL the judges approved instead of throwing a couple by the wayside, and eliminate any possibility of a SCOTUS filibuster? They must have had SOME reason for it, and if they're ready to ditch the deal and return to the nuclear option on a moment's notice.

Frankly, the nuclear option would have been relatively pain-free for the GOP if they had exercised it on the appellate judges. On a Supreme Court nomination that is squarely in the public spotlight, however, I really think the public will NOT like the GOP changing the rules in the middle of the game.

[Kagro X]

I think they were afraid of the hype that had grown up around it. All the strategic value of executing it on appellate court nominations was lost. The filibuster, and the nuclear option, had been hanging out there for months on end by the time things came to head. The next SCOTUS nominee will be named next week following the Roberts confirmation, and the same schedule will apply -- that is, confirm for October. The nuclear option, if necessary, gets threatened and executed in a matter of days.

I'll have to dig it up, but I read somewhere the other day that the amount of money spent on advertising during the nuclear option battle absolutely dwarfed the amount spent on the Roberts nomination. There are a number of reasons for that, but for our purposes, what it means is that a lot of time and energy went into awareness last time, that can't be ramped up again in time for this go-round, if everything moves according to plan.

And there's still some serious question about how necessary it will be. A relatively unknown candidate with the right credentials -- i.e., those which are equally unknown -- can still probably sail through without much resistance. If they want to get nasty, they can bring us Janice Rogers Brown and pull the stunt we discussed back in June.

[dksbook]

I didn't get LarryinNYC's point, really. I am just a Texas grandma, not the brightest bulb, but I don't see the republicans keeping any agreements with Dems. The party is way too much in hock to the RR which has let the corporations mug this country to the point that nothing works. If Katrina couldn't dislodge them from the Bush mafiosi and the crazy RR, nothing will, IMHO. Until the congressional Dems see this is all just a waste of time, it's ho, hum to me. I just wonder why they can't see what is as plain as a silverback cogressional stomach - the destruction of America that is in progress and escalating, because the Republicans are trapped by their own weird logic trajectory, and the Dems are like deer in headlights, not believing what they're seeing. It astounds me, really. This congress won't face facts.

BTW, the winds are picking up in San Antonio, mostly from the E-SE here on the north side. I am beginning to think we should have trimmed the oaks in the front. They are banging on the window I am sitting at as I type. Gotta go get the ladder.

[Steve]

I think there will be plenty of time to get the word out on the nuclear option. The nomination gets made, there's time for vetting, the hearings have to be held. If it's an obviously objectionable nominee we can start rattling sabers from day one.

[Kagro X]

We'll see, Steve. I think the plan is to move and move fast, and leave us pantsed. Either with a nominee who's unobjectionable on the surface, or with someone we know all too well, and for whom they'll hold only truncated hearings.

[Arthur]

Here is a possible way to defeat anyone to the right of O'Connor.

The Democrats on the Judiciary Committee tell the nominee that they take Bush at his word and assume that the nominee has views modeled on Scalia and Thomas. They then take the positions of Scalia and Thomas from their dissents and spell out in detail, one position at a time (privacy, Commerce Clause, civil rights, free speech, etc.), just what kind of America we would have if those views prevailed.

The Democrats then say, on each issue, that this view of America is not acceptable and unless the nominee convinces the Senators that they do not support those positions, they will not get their votes.

The Democrats, the DNC, the left blogosphere, the entire progressive apparatus, then must take the case to the country, or at least to Maine, Ohio, and other state with supposedly moderate Republican Senators, and politicize the policy views that flow from the Scalia and Thomas dissents. The American public is basically centrist and can be stirred up by Shiavo-like right-wing social policies that put government in the middle of intimate family issues.

We can beat a right-wing nominee but it will take the unity of the progressive community and all the Democrats in the Senate. That may be a tall order for the party of Will Rogers.

[rj]

Arthur, what you propose is essentially what I've thought we should do for years, and I continue to think so. But for our immediate purposes, it's getting kinda late (especially since only geniuses like us seem to see the simple wisdom of your approach). I'm sure Kagro X is right: they're aiming to ram the next one through by October, by whatever means necessary.

One thing that has occurred to me, though: Specter isn't a member of the Gang of 14. As has been covered on another recent thread here, he's never exactly been Mr. Integrity; but if there's any chance that the cautionary noises he's been making about the next nominee are sincere, then maybe there's also a chance that, while the Go14 would probably lose Graham and DeWine, they might gain Arlen. That'd be six Republicans -- enough to kill the nuclear option, assuming our 44+1 stick together. Now, if you ask about my expectations, that's another matter; though I'm always depressed after I read Kagro lately...

[Arthur]

rj,

Let's just focus on the right to privacy and, to illustrate the potential, the right to contraceptives. For example, Feinstein should concentrate on privacy, and point to what Thomas has said about doubting the constitutional basis for a right to privacy. She then insistes NOT that the nominee mouth platitudes about the generic right to privacy, but that the nominee carry the burden of proving that she (maybe he) was not a Thomas, making the nominee repudiate Thomas, and not letting go until she does. Since Bush will almost certainly nominate someone who will not insult the rightwing base by repudiating Thomas, Feinstein would frighten all of Pennsylvania because of the threat to the loss of privacy, including contraception. When that happens we get not only Spector, but even Santorum who is in a tight race!

[rj]

I definitely agree that the Dems could use their question time (to say the least) more effectively, to give casual listeners (i.e., the media) a "real-world" hook that specifically illustrates the effect of all the theorizing on actual people's lives. So, yeah, I'd always push contraception for privacy, and popular workplace/environmental regulations for the commerce clause -- all the everyday stuff that most people don't even realize might be at risk. The trick in the hearings is to find a way past the "that-might-come-before-the-Court" dodge, but a pointed and (ahem) pithy set of questions could at least have some impact on the evening news. The generalizing and speechifying sure doesn't...

[rj]

But sanctum Santorum? Remember, this is the guy who told Aaron Brown that Griswold was bad law. (Actually, too bad he's not up for the Court; he'd be our dream boogie-man.)

[Arthur]

Senator Feinstein could do it with questions such as: "Judge, tell me about experiences in your life that will convince me that you believe the right to access to contraception is protected by the constitution. If you don't convince me and the American public, you won't be confirmed. The burden is on you to convince me that you disagree with Justice Thomas' doubts on this important issue. Will you do that?"

Schumer, with questions such as this. "Judge, as you know, the public accomodations title of the Civil Rights Act of 1964 is based on the Commerce Clause. Tell me about experiences in your life that will convince me and the American public that you do not agree in the slightest with the Constitution-In-Exile view of Justice Thomas that the Commerce Clause does not support congressional acts such as the civil rights laws. You need to be convincing because the American public will not accept a nominee who would turn back the clock to the 1920s."

[Arthur]

Santorum may be a stretch but he is in bad electoral shape now and will be looking for high profile ways to move back to the center. What better way than voting against a nominee who will not unequivocally and convincingly disagree with Thomas on the right to privacy and contraception? If Sanorum won't to that, Pennsylvania will jim back to his old hometown to re-enroll his kids in school.

[rj]

Well, amen to your last point. And I'd argue that the questioning should be even simpler than that, and aimed at the guy watching the teevee: "Sir/Ma'am, we know many of Mr. Bush's favorite judges have a problem with laws that mandate overtime pay and regulate workplace safety; what little we've been allowed to see of your record suggests you'd agree with them, which would, sadly, disqualify you in my eyes. Can you put my mind at ease?...What's that you say? Might come before you? But, goodness, these precedents have been in place for going on a century now! Countless court decisions, and our very quality of life, are built on them! You're clearly quite intelligent (I see you went to an elite university); but I cannot support someone whose views are so at odds with mainstream jurisprudence --someone who can imagine, even theoretically, sending our kids back to a world of sweatshops and hardship we thought we'd escaped long ago." ('Course, more pointed and pithier than that -- this is my at-work-ramble.)

[Arthur]

The key is NOT asking questions about particular legal issues. The key is telling the nominee to convince the questioner.

"Justice Thomas has said XYZ about workplace safety regulations. We ASSUME you agree because Bush said he would nominate Justices in the Thomas and Scalia mold. Such views on workplace safety are not acceptable to me or the American public. I don't care about particular cases that may come before you. The burden is on you to convince me that you do not share with Justice Thomas his views on workplace safety. Do it any way you choose. Tell us about speeches you have given; organizaitons you have belonged to; charities you have supported; articles you have written...anything. Just convince me and the American public."

[rj]

I think your last formulation isn't all that far from what I was getting at; now the task is to get the folks who can actually ask the questions to focus...and hope the moderate Republicans can be made to remember what "moderate" means.

[Armando]

Big Bro:

Did you cross post this at dailykos?

Please do if you have not.

[Kagro X]

No, I haven't. But I did put it in convenient "blog" form, so you can let the link-a-ma-bobs do all the work for you.

[texas dem]

I don't know Kagro, you get rabble like me in the comment threads that way. Be careful what you wish for.

;)

[texas dem]

TNH fonts don't allow for effective winking faces. Damn.

See what the discourse turns to? Emoticons!

[emptywheel]

Unless we get this next appointment to be a huge deal, I don't think the questions matter. It was not just Katrina that made people forget the Roberts hearings. The average swing voter is just not going to watch a bunch of posturing Senators unless it has made some real news. So either this person ALSO has a fetish for pubic hairs on coke cans--or we suggest he does--or the questions really don't matter.

Also, I agree that DeWine was probably only marginally committed to the compromise when he signed it. But, while I don't think Hackett will win, I think circumstances being what they are in OH, DeWine might be taking the compromise more seriously now. He was never a religious wingnut. And with Bush tanking, there's less incentive to play one on teevee. And DeWine is probably thinking a little more seriously about the center than he was when he signed the compromise.

[Dand]

It's over. these scumbags have us by the short-hairs, bush has to please his base with such low poll #'s. Do the math, all that's left is to see whose really on our side. I want to vomit!!!

[Hesiod]

God dammit! We are WINNING on the Scotus. The Democrats are so into fight mode that they have lost the ability to do anything but throw haymakers. We need to adopt a rope-a-dope strategy every once in a while.

And, the Democrats have Bush in a boxc on his next nominee.

Try thinking outside the box for a change, people.

[Kagro X]

What box, Hesiod? The one that says that if Ted Kennedy votes for Roberts, the Republicans will be frightened into revealing Roberts' secret positions on the major issues? That's actually a pretty safe box to stay inside, if stepping out means buying into that supposition. A wink and a nod is all it takes to get the base back in line to the extent necessary to confirm Roberts -- which is no extent at all, by the way. The "growing concern" that Roberts isn't conservative will move precisely zero votes. At least on his nomination. That "growing concern" has until Tuesday to become overwhelming, and the odds just aren't good.

There's still room for speculation, of course, about what a restless base means for the next nomination. I just happen to think it'll be what it'll be, and the base will have to live with what it gets. Some few GOP Senators may feel compelled to make an heroic stand in the face of the nomination of another blank slate, but the number who do so will somehow -- magically! -- hug close to the formula of (Total # in GOP Caucus) - 51 + (# of Democrats who believe the insane suggestion that the nominee isn't really a wingnut).

Other than that, you contend that no Democrat will pay a price for voting against Roberts. I've agreed.

As to your contention that any Democrat who votes for Roberts will pay a huge price, I've not agreed. Or at least, I don't think so. It's not easy to tell. The first statement of your theory is that they "will" pay the price -- a "HUGE" one, at that -- but your second is that there's only "possibly" a "big political downside." I'll step "outside the box" and stand shoulder-to-shoulder with you on the incredibly risky "possibly" formulation.

Whew! Somebody get me a glass of water! All this firebreathing has got me parched.