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July 20, 2005

Discipline and Punish

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The Democrats should have one priority going into the Supreme Court nominations process: party discipline.

The Republicans are trying to convince the public that the president has the right to have his nominees confirmed. That's absolutely ridiculous. Regardless of what you think about the judicial filibuster, the fact remains that every senator is responsible for evaluating and critiquing the nominees (adivsing) and approving only those she deems worthy (consenting). Consent implies the choice between assent and dissent. You can't exercise consent when "consent" is your only option.

The Republicans are setting up certain expectations about the upcoming fight. They pretend that a senator is obliged to support the president's choice unless they can cite an egregious violation of ethics or jurisprudence.

Republicans are trying to encourage the misconception that a nominee's views are irrelevant. As convenient as that assumption is for the side that picks the nominees, it's still wrong. The standard line is that what matters is the soundness of the nominee's legal reasoning, not his substantive conclusions. The logical rejoinder is that nominations are political decisions within a system of checks and balances.

Like most jobs, there number of minimally qualified applicants for the Supreme Court vastly exceed the number of vacancies. Obviously, it would be wrong to nominate or confirm a candidate for political reasons if they were unqualified, but let's assume we're not dealing with anyone in that category. There's no other position where minimal qualification guarantees you the job. Other considerations always come into play in the final selection process.

Senators are entitled to ask the same questions that the President asks in choosing the nominee in the first place: Where does he stand on the issues I care about? Would his legacy be positive or negative?

Democrats have to shake off Bush's manufactured sense of entitlement. The first step is to identify John Roberts' values and qualifications. Are they consistent with the values of the Democratic party? In a word, no.

We all know that Bush chose Roberts because he is a dependable Republican partisan. So, the Democrats shouldn't be afraid to ask the obvious normative questions. What would Roberts' confirmation mean for progressives in America?

Even more importantly: What would Roberts' confirmation by the narrowest possible margin mean for Bush and future nominees?

Roberts is a compromise candidate. It goes against the Republican core brand idea to admit that they ever compromise, but there you have it. Don't assume that "compromise" means acceptable, let alone moderate. But recognize that Bush is feeling the constraints of public opinion.

Some analysts are calling this choice as a savvy political ploy to undercut Democratic opposition. That's one way of looking at it. The other interpretation is that Bush is already on the ropes. Roberts is not the pick of a President who feels absolutely sure of his ground. He's not up for a fight.

The Democrats should demand strict party line discipline from all our Senators. The right demands no less of the Republicans:

Insist that the administration and Senate leadership enforce party discipline. That means letting the squishes like Arlen Specter and John McCain know in no uncertain terms that if they don’t support the president here (including voting for the constitutional option to derail a filibuster), they will get nothing for the next 3 ½ years – including validation of their parking tickets.--David Horowitz

In the weeks to come, let's not get bogged down in obscure arguments about whether position A on issue B is indicative of fatal logical defect C within constitutional interpretive theory D. We're entitled to our litmus tests. If we don't like a candidate's views on abortion, let's say so straight out. Forget trying to argue that anyone who opposes abortion must have made a catastrophic error in legal reasoning about twenty steps back. Even if it's true, it's not our burden to discharge.

It's really very simple. If you're a Democratic senator, you don't vote for the John Roberts because he's not the kind of person you want on the Supreme Court. You use the confirmation project as it was meant to be used, as an opportunity to delve into the qualifications and values of the nominee. The public deserves to know exactly where this potential lifetime appointee stands on the issues. Then you vote. Then, after the smoke clears, you look around to see who else stood by your party. Then you act accordingly.

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Listed below are links to weblogs that reference Discipline and Punish :

» So Here We Go, First of Many Substantive Posts on Roberts and the Appurtenant Debate from http://moonoverpittsburgh.blogspot.com
Lindsay argues that the only thing for Democrats to do is buckle down and decline to confirm Roberts as a matter of checks and balances and conscience: [Read More]

» SCOTUS seat: the godfather rewards from bookofdays
Speaking of cut-rate Cosa Nostra operations (see end of previous post), the new SCOTUS nom fits breathtakingly into the pattern. Digby (as usual) is on the trail:In case anyone is wondering if Roberts really is a partisan hack or not, [Read More]

» SCOTUS seat: the godfather rewards from bookofdays
Speaking of cut-rate Cosa Nostra operations (see end of previous post), the new SCOTUS nom fits breathtakingly into the pattern. Digby (as usual) is on the trail:In case anyone is wondering if Roberts really is a partisan hack or not, [Read More]

» A Pause Before Rolling Over from firedoglake
The road to hell is paved with liberal "reasonableness." I'm a firm believer in the Disraeli theory that it is the job of an opposition party to "oppose." But theory aside, Roberts only seems "reasonable" because the political climate has gotten so u... [Read More]

» And speaking of Mister Roberts from dustbury.com
Lindsay Beyerstein writes: Republicans are trying to encourage the misconception that a nominee's views are irrelevant. As convenient as that assumption is for the side that picks the nominees, it's... [Read More]

Comments

Good stuff. You're absolutely right about having the courage of our lines in the sand, and being straightforward about it. The Republicans are very good at hijacking the agenda like that from the outset.

The sad part is how the Dems are never in a million years going to step up. We can call for it till we're blue in the face, but they're permanently locked in the prone position, and their resistance to the Roberts nomination, if any, will be feeble and cowed and entirely played within the Republican-set rulebook.

We can't look to the Dems for help anymore. They're a core part of the problem. We need another solution.

Republicans are trying to encourage the misconception that a nominee's views are irrelevant. As convenient as that assumption is for the side that picks the nominees, it's still wrong. The standard line is that what matters is the soundness of the nominee's legal reasoning, not his substantive conclusions. The logical rejoinder is that nominations are political decisions within a system of checks and balances.

This seems, to me, to be the most frustrating issue - that it is almost impossible to convince the public that sound reasoning can lead to different results if it starts from different value-based assumptions, so the value-based assumptions are extremely critical to consider. Larry Tribe was on PBS last night desperately trying to make this point and noting that, off camera, every single sophisticated legal thinker knows it.

You rock, Lindsay.

This is a really good post. I've been truly horrified this morning to see the number of people who are already giving up -- and disgusted by the number of people who are willing to sacrifice reproductive rights. It's good to hear a voice of sanity.

I adore the graphic. And maybe we should reel George Lakoff back to Washington to remind the leadership that "We're More Reasonable" amounts to neither a principle nor good politics.

Like Hippodamia, I'm a little stunned by the number of "wait-and-see" posts by people I gtenerally align with, like http://talkleft.com/new_archives/011559.html =blank>Jeralyn and some posters at Kos. What the f**&%k do they think is at stake here?

I tend to be sympathetic to Jeralyn's point and the position of a lot of Dems. "No compromise" talk may be inspiring but the reality is that there is no possibility of a solid win on this right now. We're going to get a nominee we don't like, and, yes, that's pretty much certainly going to mean having someone who's going to be willing to vote to overrule Roe v. Wade and PP v. Casey.

I know that John Roberts isn't even in the same solar system as a/the nominee I'd choose. But I don't know for sure that he isn't about as good as we can expect. Can anyone give me a plausible narrative where we wouldn't get someone generally opposed to substantive due process privacy rights?

I oppose his nomination in that I think he will be bad for the court in comparison to the majority of other qualified people. I don't know that he will be bad for the court in comparison to what would happen if we went balls-to-the-wall against him.

What would happen if we went balls-to-the-wall against him? The Repugs would step all over our faces even more? Not possible. They'd try to push through someone even worse? We'd fight him or her too. *What* exactly are we afraid will happen if we dare to fight them like we mean it?

I can be very specific about that: I'm worried that they will eliminate the filibuster, and the next nominee will be Janice Rogers Brown. To a lesser extent I'm worried that we will waste credibility, money, and media attention on a fight we can't win.

We forfeited the filibuster with that absurd 'deal' the Dems struck. We get to keep it as long as we promise not to use it? Please.

This is exactly how the Repugs are trampling all over us, by convincing us we've already lost. Where's the line in the sand? If it's a 'waste of credibility' to fight an anti-choice judge who's on record saying Roe should be overturned, where exactly should we be spending our time, money and credibility? If we just keep caving time and again because we want to pick our battles, we're going to find ourselves out of battles to pick in a big hurry, because we will have lost the whole damn war.

Compromise politics like this don't work, as the Dems' record over the last 40 years shows. They're now well to the right of the Republicans' position in the '60s, and skating further rightward all the time, giving ground at record speeds on core issues like choice, labor rights, environmental protection, &c. Where is the line?

I'm still waiting for the scenario where we end up without an anti-choice justice replacing o'connor...

We should use our mdeia attention, money, and credibility, by the way, trying to win some more Senate seats so we CAN effectively leverage for better picks, and for opposing potentially worse nominees. There's more to constitutional adjudication than an abortion line with two homogeneous groups on its sides.

I'm worried that they will eliminate the filibuster

You say that like it's a bad thing. I'd be happy to see the filibuster go. (I'd be a lot happier if it happened after Bush left office, but since there's zero chance of that happening, I'm also okay forcing the nuclear option by taking a principled stand against an unprincipled nominee.

The filibuster is a useful countermajoritarian safeguard. I've never been convinced by arguments like "it's mostly been used against progressives." I don't see why that makes it a bad procedural safeguard - it encourages inaction when a senatorial minority very passionately opposes a specific course of action. Not only does that generally protect the priorities of electoral minorities, but it's especially vital when there's no reason to think the winds of change are going to head leftwards in the near future.

Besides, my specific concern wasn't contingent on keeping the filibuster forever (though I'd be fine with that). What I said was "I'm worried that they will eliminate the filibuster, and the next nominee will be Janice Rogers Brown." They want conservative justices. They will nominate one after another after another. As long as we have the filibuster, we have at least some leverage that might keep the worst choices back.

We should use our mdeia attention, money, and credibility, by the way, trying to win some more Senate seats so we CAN effectively leverage for better picks

That presupposes candidates able to successfully campaign for seats. And then it presupposes, even assuming the at-this-point-frankly-risible notion of the Dems retaking the Senate, that they would actually pursue the things we want from them.

The 2000 and 2004 elections were theirs to lose, and they duly lost them. It's not that they didn't have enough money; MoveOn alone raised over $13M for 2000 and over $17M for 2004, not to mention countless volunteer hours, from the liberal hordes desperate to do something-anything to avoid the doomsday scenario of a Bush White House. And they still lost.

for opposing potentially worse nominees

These are bogeymen. This is how we're manoeuvred into accepting 'compromises' that are really utter routs, by buying into the fearful spectre of an Even Worse Alternative.

Oldest negotiating tactic in the book: demand half again what you really want, then 'settle' for exactly what you were after in the first place, making your opponent think he's won ground. Caving to the chimera of the Possibly Worse Candidate just hands the Repugs what they want.

The neocons don't want a hard social conservative much more than the Dems do; they want a hard corporatist who will let them torture people in the name of fighting terror. This dovetails nicely with the Dems' needs, namely to appear socially progressive but at all costs not soft on terror. That's why they'll cave on Roberts, just watch.

BionOc: I'm still waiting for that plausible winning scenario...

People--eyes on the prize. Of course he's getting the seat. Hammering at him should be done anyway as an educational exercise for all the idiots who voted for Bush thinking there's no way he'll overturn Roe v. Wade. My guess is that's 25-50% of Bush voters. Make them so angry with him that they refuse to vote for another Republican.

Amanda: Absolutely. This is not winnable in terms of if he gets confirmed. I'm all for staging the most effective theater we can. But there's absolutely no reason to use the filibuster, which is a major, more specific component of what I mean by balls to the wall.

It is true that there is no possibility of a solid win on this fight. Similarly, there is no possibility of a solid win on most Washington fights right now. We don't have enough Democratic votes in Congress, and the "moderate" Republicans are useless. We need to win more elections to win more Congressional fights.

The question is what kind of a loss we want: a loss where we say what our principles are, stand up for them, and get outvoted, or a loss where we politely give up in advance?

I, like Lindsay, think the former is better. I think showing people what you believe in, and why the two parties are different, is good politics. I think the Democratic Party won't start winning more elections if Democratic politicians don't have anything better to say about themselves than that they're good at doing what Republicans want them too.

Unfortunately, Eli, the filibuster really is the drama. Almost every other drama tactic ultimately ends in a capitulation rather than a loss. And capitulation is definitely bad theatre.

I started out reading these comments thinking that letting Roberts go through without a fight was the lesser evil, but I'm coming around to the other point of view. If nothing else it will show that the dems have gonads, which is unfortunately not at all obvious right now.

On the filibuster issue - I find it hard to believe that anyone who has thought about the issue in the light of history could think that making it easy to pass laws on a simple majority is a good thing. Democracy only works if the majority is forced to take the concerns of the minority into account. This forces a deliberative process that helps to weed out the outright crap (not that it is even close to 100% effective). More law is not better law. If we have to fight hard to get good law, that's a reasonable price to pay in order to avoid majoritarian dictatorship.

We did manage to stop Bolton, though. I don't think we should sell ourselves short. The Senate has to abslutely hammer Roberts, and not let him get away with "I can't comment on upcoming cases" crap. He has commented -- repeatedly -- on Roe v. Wade, so that door is already open. He also thinks the president has the legal right to detain citizens indefinitely without trial: let's see him explain that one.

If we fight tooth and nail there's a good chance we'll loose. If we don't fight at all there's no chance we will win. Think of Kerik! Bush's administration has a history of not doing the necessary homework. Roberts may not have as many skeletons, but I doubt he's skeleton free.

I'm not trying to be starry-eyed here. It's just that if we don't fight now, we'll be less and less able to fight in the future.

YES. Thank you.

We have a right to our litmus test. Without it we have no standards. (Aren't the rightwingers constantly going on and on hypocritically about "standards?) They can't turn it around on us if we "frame" it as our basic standards, using their ruse, rather than calling it a litmus test. The only thing that ever works with the rightwing is Occam's Razor.

To me, the saddest part of all of this, including a lot of this conversation seems to be focused on entirely on "how do we look good losing" as opposed to "how do we win against bad odds."

If we are to win this thing, it isn't going to be in the well of the Senate. It is going to be in the hinterlands and it is going to be in the electoral math of some key states with shaky GOP Senators facing reelection next year.

However, I think Lindsey is absolutely right. This all begins and ends with absolute party discipline. Any Dem Senators step out of line, then fsck 'em, they get spaced out the airlock. (And that goes for any slack-jawed moderate Dems in the House, too...no one so much as opens their pie hole, or gets their grill on the chat shows without being in full-throated support of the game plan, the end!)

Harry Reid and Dr. Dean need to get on the same page about this. I know asking Democrats & progressives to get together on something like this is like herding cats, but it's not going to work any other way. Decide if you can do that now, and if not, then fine, go ahead and continue shopping for funeral accessories. I'm sure it will be a lovely wake for the Republic...

But if we decide we can, then the next step is going to start by getting the right pressure in the right places. There must be five or six GOP Senators facing sketchy reelection fights next year. They need to feel the branch creak.

Bush is vulnerable right now, he has no coattails and doesn't really have any leverage in the Senate now, anyway. Don't make this about Bush, make this about the Senators and whomever of their numbers are thinking about 2008.

Next, this guy might not have much of a resume, but what there is needs to be out there, and as far as the "Nuclear Option" goes, then fine, I am all ready to see the well of the Senate get vaporized in a procedural mushroom cloud. Cool, let Bill Frist ride the bomb all the way to ground zero just like Slim Pickens in the end of Dr. Strangelove.

If we fight hard -- and more importantly, fight smart we can do this. We can punk this clown and get the machinery moblized for the midterms and get rolling on 2008 all in one shot.

Sorry, this turned a bit more into a rant than I thought it was going to. My bad. The 2008 race starts right now. Any takers?

mojo sends

I have mixed feelings. Let's imagine that in 2009 we have a Democratic President. Does a GOP majority Senate get to vote against any pro-Roe v. Wade nominee? Of course they can do that if they want, but it's not a very good system is it? They would also get killed in the court of public opinion, as I think we would if we fight this clearly brilliant and qualified nominee who we just don't agree with on most things.

Ask tough questions of Roberts, yes. Make sure the nation knows how conservative he is, definitely. But I'm not sure voting against him helps us politically. It certainly won't stop his confirmation and it just seems like a whiny denial of reality. At the end of the day, bush is president and we aren't going to get the nominee we want no matter what we do. So let's be tough and make our case to the nation.

Obstruction for its own sake seems awfully petty and useless to me. I am all for fighting Bush every time it helps us win elections or slow his awful policies. But on this one I just don't see it.

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