September 16, 2005

"They will do what they think is in their interest, however they define it."

That's a quote from Hillary Clinton, in this piece about Democratic Senators trying to figure out how to vote on John Roberts.

Here's how Dianne Feinstein expressed herself after the hearings: "I'm sorting out what I feel now." Because, as she made it clear everytime she got her turn at the microphone, it's all about feelings.

And here's an icky quote:
"Part of the reason people are conflicted is because Roberts has shown just enough leg to get a second date," said one Democratic strategist, speaking on the condition of anonymity so as not to give away internal party deliberations. "No magic moment has occurred where you could say, 'Oh, we can't put this guy on the bench.'"
I love the idea that in private, the Democrats discuss politics in sexualized language. (No wonder Wonkette is so popular.)

Anyway, let's assume it is all about political interest, and there's not a fiber of principle in their decisions, or that any fibers of principle are interwoven with politics because it's politically advantageous to seem principled. On that assumption, what's a Democratic Senator to do? I'd say they should express their deep reservations, invoking issues that matter to their constituents, but still vote for him, and say that it's because of the agile mind their astute questioning enabled him to display at the hearings. This should be combined with a warning to Bush that he needs to nominate someone more moderate to replace O'Connor.

Voting against Roberts will make Democrats look as though they think the judiciary is a thoroughly polical institution. They would seem as though they are degrading the courts. Bush nominated a man who will appear to ordinary people to be scrupulously judicial, and their complaint about him will seem to be that they don't want a real judge, but a political ideologue. Yet they want their position to be against the ideological judge. How will that make sense to people? They need to vote yes. As someone said in the comments yesterday, if they vote no now and Bush nominates a very ideological conservative to replace O'Connor, no one will believe them when they cry wolf the second time. Roberts should go through, and the Democrats should position themselves to oppose the O'Connor replacement, especially if Bush goes hard right.

I wonder if the Bush people are sitting back with more than one potential nominee, and they're waiting to see what move the Democrats make. Which move do you think will make Bush's next move more right wing?

34 comments:

Sloanasaurus said...
This comment has been removed by a blog administrator.
Bruce Hayden said...

It is an interesting gaming problem for the Democrats. If they scream too much, or appear to be voting against him for partisanship reasons, they will look bad when they do it for the next nominee - as you suggested, crying wolf.

On the other hand, their inaction here might be viewed as a green light on the part of the Republicans. Judge Roberts can then be used as a benchmark against which future nominees are judged, and the Democrats would have a hard time opposing anyone not a lot to the right of him.

Gerry said...

Without question, a party-line vote. Even a party-line vote in judiciary opens the door.

Gerry said...

Of course, there is another quandry for the Dems.

If they don't try to appear to be attempting to block Roberts, who did not turn over (rightfully) the Solicitor General documents, then they have a real problem if Bush nominates Miguel Estrada, given that was the alleged reason they blocked him for the Circuit Court.

I don't think, though, that Bush has two nominees lined up and will make his choice depending on what they do. From what am I hearing, Larry Thompson is probably going to be the man, unless extended vetting turns up some problems.

Ron said...

Well, Ann, right there is the new political distinction: umpires vs. cleavage, sports metaphors vs. sexual language...

peter hoh said...

Voting for Roberts is not the same as inaction, as Bruce seems to suggest in his comment. The Democrats have acted -- by asking tough questions and fighting for documents withheld by the administration. Voting for Roberts now puts the best possible spin on the tough questioning.

Using Judge Roberts as a benchmark is not such a bad thing, in my opinion. In fact, that may be the Democrats' best option.

Bush will not be nominating a moderate -- the only question is if he will go much further to the right than he did with Roberts. And there isn't much the Democrats can do.

The Supreme Court needs some help in the perception department. A straight party-line vote reinforces the perception that they are just a bunch of partisans. Fully supporting the new Chief Justice will help counter that, and perhaps the Roberts court can figure out how to forge a less partisan reputation. I know I'm being overly optimistic.

Troy said...

I think the pick is going to be right wing regardless of the move Dems make. Cases like the pledge case from Sacramento "prove" what many people think about an "out of touch judiciary" and all the other arguments.

That case helps give Bush political cover and he would most likely pick a conservative jurist anyway because that's mostly who he is -- ever since the first day as TX Governor.

Eddie said...

I think if he had shown any leg to get a second date, he likely wouldn't receive any votes :)

Simon said...

I think that their votes are incidental at this point, and that the problem is in the rhetoric. The problem is this: they have been so inflamed about Roberts, everything has been dialled up to eleven, such that it's hard to see how they could turn it up any higher. Think about it like this: if Bush now nominated Robert Bork, who is indisputably more conservative than John Roberts, what language could they offer against him that they have not already used against Roberts? By trying to make the public believe that Roberts is something that he isn't - a conservative idealogue - they have opened the door for someone far more conservative, because they can't dial the rhetoric any higher.

If they vote yes on Roberts, I think their base will go nuts, because I think their base - like the GOP's base, actually - truly believes their own propaganda. If Biden and Feingold vote yes, and indeed, any democrat who has cultivated the Kossacks, their presidential aspirations are over.

If they vote no, then the message they are sending to Bush is "you could nominate Larry Tribe and we'd still vote no. There is not a single person you could nominate who we would support", and I think Bush would take that as invitation to nominate someone genuinely to the right of Roberts. Maybe even fulfill his promise of another Scalia or Thomas, I don't know. But, as discussed above, the dial only goes to eleven, and whoever the President chooses, the Dems have left no room for themselves to distinguish Roberts from the next person.

So for the Dems, I think it's a lose-lose scenario. Whatever they do carries short term and long term - I think this is an inapt characterization - "threats".

Bruce Hayden said...

Remember though about Estrada - he was not opposed because of his lack of a paper trail. That was the excuse, but it wasn't the reason. He was opposed because they knew that if he got on the appeals court, he would have an easier time for the Supreme Court, and they didn't want the first Hispanic Justice nominee to be that conservative. This has been detailed in Democratic Judiciary Committee staffer memos from that time.

Bruce Hayden said...

Continuing my previous post - as to Mr. Estrada, in these Democratic Judiciary Committee staffer memos, you should note the memo to Sen. Durbin dated Nov. 7, 2001 ("Meeting with Civil Rights Leaders Yesterday to Discuss Judges"), memo dated January 30, 2003 ("Members Meeting with Leader Daschle"), Feb. 4, 2003 to Sen. Kennedy ("Judges, Judiciary Issues, Meeting with Civil Rights Leaders")

SteveR said...

I think they just like hearing themselves talk and thinking they are so smart and politically astute. For the most part we pay them little attention but the spotlight exposes them as Glen Reynolds noted yesterday in his column, as people who "talk too much, listen too little and although they are supposed to be the experts, often get the law wrong."

stealthlawprof said...

Bruce Hayden is correct; it is an interesting situation. On one hand, the Democrats could set up Roberts as a benchmark for future nominees. Roberts sets a mark that would be hard for almost anyone to meet, and that would make it easier to oppose the next Bush appointment without necessarily looking like ideologues.

On the other hand, they may have been too aggressive already in attacking Roberts to be able to sell a vote for him either to their base or to the public which might smell some partisan chicanery in the air. (Could the one week gap between hearings and vote reflect a Democratic plan to try to soft-pedal their hearing performance and set up Roberts as the unattainable benchmark for the next nominee?)

The possibility of an Estrada nomination is interesting because the opposition to his DC Circuit has been exposed as a ploy to keep him off the Court and because it succeeded only when the Republicans had a more tenuous hold on the Senate. Will GWB be able to go to Estrada now because he has 55 GOP senators? I suspect the answer is that he can if he wants to do so.

The prevailing wisdom is that no nomination will come until after the Roberts vote from the committee or even from the full Senate. I questioned this on my own blog last week and still question it. Roberts is clearly in. A quick announcement puts the next nomination in the context of Roberts and the Committee Democrats' poor performance with him. Any screaming about the new nominee is just going to look like more of the same partisanship. Allowing time to pass may allow the Democrats to make their opposition to the next nominee look principled.

Bruce Hayden said...

I think stategery wise, it might be advantageous to announce the second nominee after the Roberts' nomination goes to the full Senate, but before the vote. This would be a distraction probably more for the Democrats than the Republicans.

Nels said...

It wouldn't surprise me to see Feinstein, up for re-election in 2006, vote to confirm Roberts, as she knows he is sure to win with or without her vote. The next nominee will probably be a woman and/or Hispanic, and if Feinstein is to oppose that person she can't have the appearance of doing so for partisan reasons, considering the demographics of her supporters.

My guess is that Kennedy, Leahy, and Durbin will vote against, to keep the money coming in, and Biden and Feingold will vote against because they're looking ahead to the 2008 primaries. Schumer will probably vote to confirm because he doesn't have to answer to the voters until 2010, isn't a presidential contender, and he'll then be in a better position to attack the next nominee.

vbspurs said...

On my blogpost of today (below the ABC video of post-speech interviewees giving the reporter a shock by not getting the Blame Bush! memo), I mentioned how I thought there might be a Friday Surprise in store for us, intimating that could be a nomination.

But no, it's National Day of Prayer and Remembrance, and Bush's sense of appropriateness is too strong for politics to intervene today (unlike apparently, Governor Schwarzenegger).

So I predict the announcement will come first thing Monday.

It was never in doubt that Roberts would be confirmed as Justice. And after a week of posturing, even partisan wonks like Schumer called him the "best legal mind ever to appear before this panel".

If the President nominates someone on Monday, he takes the offensive yet again, especially if it's someone to the right of centre.

If you vote nay on Roberts, having a more conservative jurist just nominated, it makes Democrats look oppositional, no matter what.

As for whether the new nominee will be more conservative than a perceived-moderate like Roberts, my instincts agree with most people: yes, the new nominee will be more conservative.

And the Dems will raise their hackles, saying that a moderate swing-vote type person should rightfully succeed SDO.

But I was afraid, before the Hearings began, that Roberts was in fact a stealth libertarian.

The Hearings showed a Roberts who is solidly conservative, and knows how to play the Washington game.

I think as we enter the weekend, the President's staff know who the nominee is already.

And it's not anyone has mentioned so far (Estrada, Thompson).

It will be a counter-intuitive nomination, possibly with a bureaucratic background.

We'll see...

Cheers,
Victoria

michael a litscher said...

Judge Roberts can then be used as a benchmark against which future nominees are judged, and the Democrats would have a hard time opposing anyone not a lot to the right of him.

I disagree. Senators do not hold themselves to any kind of consistency, as we have seen. As Hillary has stated, "They will do what they think is in their interest, however they define it," which is remarkably honest given the source. And I do believe that that self-interest freely changes from nominee to nominee, without any regard to consistency.

Even though the internet never forgets, for the vast majority of people who are not the political animals we are, no inconsistency will ever be noticed or noted by the msm.

Eli Blake said...

First, you all are ignoring the inconsistency that the Republicans were just as zealous in blocking Clinton nominees (they just did it in committee).

One other observation: Ever notice how Democrats are more likely to have sex scandals but Republicans are more likely to have scandals involving money or payoffs? The current and former governors of Kentucky are a perfect microcosm of this phenomenon.

Wonder if there is something psychological about that.

Gerry said...

"First, you all are ignoring the inconsistency that the Republicans were just as zealous in blocking Clinton nominees (they just did it in committee)."

Untrue-- and not even close, at least until the Gang of 14 came up with their compromise.

Gerry said...

"Ever notice how Democrats are more likely to have sex scandals but Republicans are more likely to have scandals involving money or payoffs?"

Also untrue. Just ask to-be-House Speaker Bob Livingston, or Sen. Bob Packwood, and Harold Ford's uncle, and the Rose Lawfirm billing records, and so on and so on.

Both sides are made up of people, and you get people who screw around and people who dip into the till on both sides.

Matt said...

There are people on the left who are crying for Feinstein's head on a platter already, and that may wind up being a bigger worry for her in the political calculus of the matter.

Simon said...

There are people on the left who are crying for Feinstein's head on a platter already

Wha...? Who? For what reason?

I mean, it's just absurd. I opined above that the base would go nuts at any Senator voting yes, but...It's just absurd.

Adam said...

Gerry, those statistics are wrong, as I pointed out on that thread half a year ago:

"Cutting off the statistics after 2003 misses the huge number of Bush’s nominees confirmed in 2004; by the end of 2004, 172/178 of his district court nominees had been confirmed."

60+ Clinton judicial nominees failed to receive an up-and-down vote; many failed to even receive a hearing, including Elena Kagan, now Dean of Harvard Law School, nominated for the DC Circuit.

vbspurs said...

Ever notice how Democrats are more likely to have sex scandals but Republicans are more likely to have scandals involving money or payoffs? The current and former governors of Kentucky are a perfect microcosm of this phenomenon.

BTW, that's the exact opposite in my country (Britain):

From the Profumo Scandal, to the corrupt croneyism of the Harold Wilson era...

...in Britain if you're a Tory politician, it seems more you will more likely be nabbed for sexual misbehaviour.

If you're a Labourite, you'll more likely be nabbed for corruption.

And no offence, but that makes more sense to me, doesn't it to Americans too?

After all, we Conservatives are much more comfortable stressing moral standards, whereas Socialists/Liberals base their ideals on the fact that capital and money is the root of almost all evil.

It follows that one or the other would be outted as a hypocrite by not following their party's ideals.

Cheers,
Victoria

Finn Kristiansen said...

I would think the Democrats, after raising a minor huff, will throw Roberts a fair amount of votes, saving their arrows for the next nominee who will no doubt be obviously more conservative.

They can then tar and feather the next nominee, while pointing back to Roberts and saying, "See, we are not partisan, we gave Roberts a fair shake."

ziemer said...

i tend to agree with you, finn.

but i question why they didn't do that from the beginning.

i realize that the special interest groups like people for the american way are not the democratic senators themselves, but there's alot of coordination between the two.

it seems to me they should have recognized much earlier that the plan you proposed was probably the best course they could take.

Gerry said...

Adam,

Those statistics were not wrong. Not only did I go over them, but they were also vetted by The Economist and by the Washington Times, both of which ended up running with them (giving me full attribution, which was nice).

Regards,
Gerry

Matt said...

Feinstein is viewed by the most radical of the folks over at Kos as a pro-war sell-out and a "DINO," due to her votes on the war and CAFTA. She's second on the "hit list" behind Lieberman. The current in vogue idea to have Cindy Sheehan run against her.

These are also the people who think the only hope for the party is nominating Howard Dean or John Conyers for President. Then everyone will "come home."

Wave Maker said...

If Chuck Schumer votes YES on Roberts in Committee, I'll eat my monitor.

Simon said...

Feinstein is viewed by the most radical of the folks over at Kos as a pro-war sell-out and a "DINO," due to her votes on the war and CAFTA. She's second on the "hit list" behind Lieberman. The current in vogue idea to have Cindy Sheehan run against her.

Marvellous stuff! If the Sheehan can be pursuaded to run as an independent against Feinstein, and the GOP finds a good candidate, we could have the first Republican Senator elected by California since Pete Wilson! Interesting plan, although it's not entirely clear to me, how that helps the Kossacks' agenda?

Matt said...

No--the idea is to run someone against her in the primary, though some of the people at Kos have said that what's better for the Democratic party is a "purer" smaller party. I happen to think that's not good for the Democratic party or for America.

Hey said...

seeing this Kos stuff, I think I'm going to have to give them some money... they're doing all of our work for us. He's gotta be a Rove plant, it's just too good. A great thing for America... leading to a rump left and, ideally, a two party system between libertarians and conservatives!

I think (ok, really I hope) that Bush nominates someone who will exploit the 11ness of the anti-Roberts rhetoric. Janice Rogers Brown or Priscilla Owens would just be great picks, since they'd make the heads of people like Teddy K and PFAW explode. Seeing leftwing feminists decrying how these women were anti-minority and anti-woman would be absolutely fricking hilarious. Even if you're a leftist member of NARAL or PFAW, you have to admire the irony of the inevitable oppositionalist rhetoric. "This highly accomplished black, female judge will bring about the end of rights for minorities and women. She is emblematic of Republican racism and mysogyny." Absolute classic. Then you have the rest of the Spinal Tapped thing, but with the liberal commentators in the role of the exploding drummer.

Good times, good times.

Simon said...

No--the idea is to run someone against her in the primary, though some of the people at Kos have said that what's better for the Democratic party is a "purer" smaller party. I happen to think that's not good for the Democratic party or for America.

This sounds fairly familiar, given that there are several sections of the GOP who seem intent on removing people like me from the party in the name of "purity". The sign on the Republican Party door is not quite yet "moderates not welcome", but the disapproving frowns from certain quarters are unmistakable.

This is, of course preposterous; I have policy disagreements with those who are slightly more moderate than myself (Sen. Snowe, for example) and with those who are considerably more conservative than I am (Speaker Gingrich, or Sen. Brownback, for example), but I would not dream of demanding their ejection from the party on the grounds that they apply the words of the Republican pledge to real-life issues and problems in the same way that I do.

I agree that it is in the interests of neither party, nor America, that we abandon the concept of two big tent parties.

Simon said...

ACSblog is reporting Edith Jones will get the nod. Given ACS' highly dubious reputation, I don't know how much weight such a promise holds, although David Wagner strongly implies that he likes such a nomination.

I have had some objections to Janice Rogers Brown's expressed philosophy - IIRC, she argued that there was nothing so wrong with Lochner, at one time or another - but for the reasons identified by the previous poster, it would be a POLITICAL masterstroke. The problem is that political masterstrokes do not always make for great justices, as my concern is that Chief Justice Roberts may demonstrate.