Please visit the new home of Majikthise at bigthink.com/blogs/focal-point.

« Joe Sacco and China Miéville | Main | A Carnival evolves »

July 20, 2005

Discipline and Punish

Whip_hand_cover_copy1

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.

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c61e653ef00d83459162b69e2

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

Looking for something today that was not at all related to this, I found an Abraham Maslow quote that I think sums up my take on this fairly well:

"If I were dropped out of a plane into the ocean and told the nearest land was a thousand miles away, I'd still swim. And I'd despise the one who gave up."

(It's probably not literally true in my case: I'm a lousy swimmer.)

How is it obstruction to vote your conscience? Democrats don't have the votes to defeat the nominee outright. So, no obstruction there. All Senators have a constitutional duty to scrutinize all nominees. So, no obstruction there.

The point is to send the accurate message, namely, that Roberts is an extremely conservative nominee whose values don't overlap with those of the Democratic party, especially since his A-number-1 values is advancing the political fortunes of the Republican party.

Any Democrat who votes for him is giving him moderate cred that he doesn't deserve.

The total number of people who voted Republican or didn't vote at all in '04, but who would have voted Democratic if only the Dems were less "obstructionist" is approximately zero. All this fear of dire consequences if Dems appear "obstructionist" is complete bullshit. As Scott Lemieux writes at Lawyers, Guns, and Money:

In addition, I would like to note that the next person who can offer evidence that being labeled "obstructionist" has any significant political effects will be the first. Yes, Virginia, Joe Klein and other Beltway hacks do not, in fact, reflect the concerns of ordinary voters.

Roberts is an extremely conservative nominee whose values don't overlap with those of the Democratic party, especially since his A-number-1 values is advancing the political fortunes of the Republican party.

Lindsay, where are you getting this stuff? He may be demonstrably business-friendly, and he may have argued, on behalf of his client (the administration of Bush 41), for the reversal of Roe v. Wade, but that his A-number-1 value is advancing the political fortunes of the Republican party is a serious allegation to wing at a reputable four-year appellate judge and Supreme Court successor apparent.

I'm not hostile to the idea that all of this is true -- and my inclination to encourage my Senators (Specter and Santorum, so I'm sort of up a tree anyway) to oppose his confirmation will increase in due proportion with the degree to which it is shown to be true -- but this thread is rife with assumptions (Roberts is a GOP shill) and misstatements (repeatedly on the record against Roe v. Wade? He was the sixth credited author, and not the arguing SG, in that case) about his record that merely make us sound more shrill to the extent they animate the core of any opposition we're inclined to mount.

Until more concrete reasons to oppose Roberts than "he's Bush's choice" emerge, I'm with Liberal Chris, as I've indicated here.

We won on social security and, pending recess appointment, on Bolton because the former was harebrained and the latter was quite possibly the worst nominee Bush could have chosen short of Kissinger (and hell, Kissinger at least is demonstrably brilliant, if in an evil genius sort of way) for the UN post. That is to say, the facts were on our side and a unified front both made sense and was marketable to the public. Since we're going to get a conservative, like it or not, and worst-case lose the filibuster power in the process, he needs to emerge from the hearings looking more like Bolton and social security reform to warrant lockstep rejection and obstructionism by a party that sorely needs to present itself as an alternative to the divisive gotcha politics of the right.

I also find it interesting that voting their consciences apparently requires all Democrat senators to reflexively reject any nominee on the abortion issue alone. Even if preserving broad abortion rights were a core principle for every Democrat (it's not, of course), that still wouldn't mean that a given Senate Democrat necessarily must vote on that issue alone or reveal himself as a collaborator or party traitor.

I'd like to think unanimity and voting one's conscience tend, in all but extreme cases, to be anathemic to each other.

Until more concrete reasons to oppose Roberts than "he's Bush's choice" emerge, I'm with Liberal Chris, as I've indicated here.

Exactly how many times do you need to be deceived before you stop giving Bush the benefit of the doubt?

This is not a rhetorical question.

L, your call for party discipline is the right thing for the public to do, but the cognoscenti has to remember that, especially in the Senate, there is no mechanism to keep these senators in line as they have in parliamentary or even mixed systems.

Why? That's due to the way the system we have is set up (where we have relatively weak political parties...). The biggest threat that a party could throw at someone in other systems is to say "sorry, you can't run next time..." a power that the parties have in other democracies (such as the Brit model).

Here, all the DNC or the DSCC, which is a very weak party incentive (that lacks funds enough to offer anything to senators, and also lacks teeth), can say is "pretty please" and "we'll be really hacked off at you..." if you vote for Roberts. They can threaten other candidates, a withdrawal of their paltry support, etc., but otherwise, if the candidate raised all their own money and/or are in a relatively safe seat, they just flip them off and move on.

I fear this will go badly...and that there won't be much of a fight other than by NARAL and PFTAW, etc., who view this as an recruiting/fundraising opportunity. Roberts is already in the bag, sadly.

Depends whether he's a party hack or a right-wing weirdo. I prefer the former because once they get the lifetime appointment, they don't have to whore for anybody. And they sit there and say, "hmmmm. maybe I should take this seriously." And then they driiiiifffft left, like Sauter and O'Connor.

Another scenario is Daniel Paul Schreber, the Chief Justice of the State of Saxony: http://www.nybooks.com/shop/product?usca_p=t&product_id=31

I think it's interesting how much this issue seems to split people into "fight as if we have a realistic chance of winning" and "don't criticize hard and vote to confirm" camps.

There is, of course, a slight chance that we could win, but that would require either Republican cooperation, Kerik-style Easter eggs or a dismal performance when questioned by the Senate. I sincerely doubt the middle one will happen and am even more skeptical about the first and third. Roberts was a very good appellate advocate and I'm sure will handle himself well under grilling - in fact, I think that's probably a major reason he was chosen. And every indication is that Specter's on board for this.

But there's no reason whatsoever not to try to eviscerate him, and certainly no reason whatsoever to vote for him. If being tough in hearings and voting against is what people mean by "oppose," that's great. But the goal should be, like Amanda said, eventual electoral victories, not the likely-impossible goal of blocking him. To that end, I see no reason to lose the filibuster over this, and lose not only a card to play on Bolton or the next one, but also an important procedural safeguard.

Exactly how many times do you need to be deceived before you stop giving Bush the benefit of the doubt?

Thad, Roberts is not some random "party hack" from some random backwater with no record of his own to review. He's a four-year appellate judge and a prominent public servant, a man with a record. I don't have to worry about Bush "deceiving" me when the writing is on the wall. Indeed, it's not you, me, or most of our fellow travelers, who have been deceived to begin with; mostly, the Bush admin has hidden in plain sight for five years now.

It wasn't rhetorical either when I referred to taking the high road due to the public's increasing distaste for the standard tactics of the right. Look at the Schiavo case: the public rebelled utterly against the GOP's attempt to exploit for electoral gain a fundamentally private family matter, and every nationally prominent Republican with his hands dirty on that one has suffered a diminution in his approval rating as a consequence of it.

Just when a majority of the public grows wary of the GOP's bullying tactics and abuse of power, we'd make ourselves in the GOP's image? I'm no politician, but it seems to me this is a risky course, and will constitute, at best, a pyrrhic victory when we wake up one day to find we're no different, no less petty, than the other side.

People talk about standing up for our principles and going down in a blaze of glory, if that's what it takes. Aren't our principles all about intellectual engagement and pluralism? Lockstep voting, turning our backs en masse and stalking off the Senate floor? This is an improvement? Matching the GOP tantrum for tantrum isn't going to change anything; it will merely free the GOP from the burden of explaining its fundamentalism to an increasingly dubious moderate majority of the electorate.

One problem is this:

You can not set out to gain whatever possible political advantages there are while letting him pass. It is the best we can hope for, but it can not be our strategy. You have to set out to derail him.

If the Republicans know in advance that they have the votes in the bag, there will be no hard questioning, or no responsiveness to hard questioning. So, even if there are 6 Dem senetors who like the guy, or 6 who think he is the best we can get, or even 36 who feel that way, he must be put through the wringer. Unity is vital. We can't have Lieberman and 5 others assuring the Republican that there will be comity. They don't need to spit fire, but they need to insist on their rights and duties to act as a senator.

We must squeeze what political advantage there is to be gained out of this for the next election. We must also lay the groundwork to justify resistance. This is important, because the next nomination will be completely odious. Bush will force a situation where we either get stuck with a mouth-foamer on the Bench, or a rejection that whips up the right-wing base. We must manage this kabuki nomination well, so we can shoot down the next with minimal political damage.

I think the Senators should grill him on whether he thinks the takings clause disallows government regulations...

Liberal: Yes! I'd give my right eye to have some major discussion of his position on regulatory takings.

So next time the Democrats get into power, should Republicans filibuster a Ginsberg or a Kennedy, until a Democratic President appoints a pro-life candidate?

The comments to this entry are closed.