“The core difficulty for Democrats is that they must solve two problems simultaneously — and solving one problem can get in the way of solving the other. Over time Democrats need to reduce the conservative advantage over liberals in the electorate, which means the party needs to take clear stands that could detach voters from their allegiance to conservatism…But even indeterminate talk of a ‘national’ message makes many Democrats holding those 41 pro-Bush House seats (and Democratic senators from red states) nervous.” E.J. Dionne attempts to explain the structural basis for our party leadership’s frequent disarray, which was in full evidence again on the Roberts vote.
Tag: John Roberts
Hail to the Chief.
“When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime.”
By a vote of 13-5, John Roberts is approved by the Senate Judiciary Committee — with Dems Patrick Leahy, Herb Kohl, and Russ Feingold joining the Republican majority — and will no doubt become the Court’s next Chief Justice. The Dems — and particularly Sen. Feingold — are already getting flak for their Yes votes from People for the American Way and other liberal groups. (For their part, Hillary and Joe Biden have decided to keep the 2008 primary voters happy.) Well, just as I think Feingold was right to vote yes on Ashcroft in 2001, I think he made the correct decision here, both in terms of principle and politics.
In terms of principle, I think Feingold’s statement above is exactly correct. We could go through 1000 nominees, and Dubya would never pick anyone who comes remotely close to being a progressive — Sadly, the conservative tinge of the Supreme Court was decided last November, with Dubya’s re-election. The question before the Senate was whether Roberts was (a) competent enough to fill the position of Chief and (b) whether he adhered to the broad mainstream (albeit conservative mainstream) of American legal thought. I watched almost all of the Roberts hearings and, although he dodged and weaved past way too many important questions, he was clearly (a) hyper-competent and (b) more respectful of existing legal precedent than many other conservative freakshows Dubya could have appointed (and might still.) Roberts said a number of times that he believed in a constitutional right to privacy, that Griswold was good and settled law, and that (although most agree on this anyway, Janice Rogers Brown notwithstanding) the Lochner Court was not an appropriate or worthwhile historical role model for today’s judiciary. Perhaps he’s lying, but it’s no small business to lie before the Senate. I think Feingold was right to take his word at face value and vote yes, with reservations.
Voting for or against a 50-year-old Chief Justice is not a decision to be taken lightly, and I’m sure Dems on both sides of the vote chose their stance on principle. But, to be base for a moment and consider the politics of the situation, the Yes voters allowed themselves wiggle-room on the next nominee that most Dems have basically wasted on a sure thing. Roberts is replacing Rehnquist, a conservative for a conservative. The real battle lies ahead, when Dubya appoints a justice to take O’Connor’s swing-vote position. Where are the Dems who voted no on Roberts going to go? Chances are the next candidate for justice will be less competent and more conservative, in the scary-fundy sense, than Roberts, but the no-voting Dems have lost all pull by not keeping their powder dry. Had the Dems acceded to Roberts’ nomination, they would have easier recourse to a possible filibuster in Round 2, particularly with the fair-play-minded Gang of 14. Now, not so much.
At any rate, I’ll admit to being already something of a Feingold groupie — More than any other Dem, except perhaps the late Paul Wellstone, I view him as my Senator in Congress, the closest thing to a true progressive out there. (For what it’s worth, I also thought he did a better job than any other Dem in his questioning of Roberts, with the possible exception of Dick Durbin.) Still, I think he made the right decision in this vote, and I hope very much that groups on the left who disagreed with his choice here keep an eye on the big picture and don’t start calling for his head.
And Roberts? Well, I’m never going to agree with the guy on a lot of issues, that’s for sure. But, in the hearings, I thought he came across as conservative in the old and best sense of the term — cautious, restrained, not inclined to break tradition — and not as a frothing, fundamentalist reactionary like any number of judges Dubya has appointed to the bench. Let’s hope, for all our sakes, that this turns out to be the case.
Showtime for Mr. Roberts.
The Roberts confirmation hearings are now underway. So far, they’re not making for the most scintillating television — at this very moment, Sen. Jeff Sessions (R-AL) is mangling his way through an opening statement he’s clearly never read before — but hopefully the drama will pick up once the Senators start firing away questions. (In fact, Feingold’s up now with his opener, and Roberts’ brow looks increasingly furled.) Update: Well, he’s polished…I’ll give him that. After watching three days of hearings, I learned more about hapless toads and the various senators on the Judiciary committee than I have about Roberts.
Fallen Chief.
Breaking News: Segregationist, federalist, kingmaker, lousy historian, fashion maven, and Chief Justice of the Supreme Court William Rehnquist has died. Can’t say I’m looking forward to the Dubya gang getting to pick a new Chief Justice. Nope, not at all. Update: Dahlia Lithwick weighs in, and the nomination calculus begins anew. Update 2: It’s Roberts for Chief.
Construction Time Again.
As big-time progressive donors get to institution-building, the Dems try to work out a coherent strategy on the Roberts confirmation hearings and the war in Iraq. Right now I think Russ Feingold’s strategy — taking the heat off Roberts to focus on matters in Baghdad — is probably the right one, although the party should also try to keep the public eye trained on the misdeeds of Mssrs DeLay, Rove, etc. There should be no wriggling off the hook this time for these well-placed GOP criminals.
Mr. Nice/Ninth guy?
“And that’s why John Roberts doesn’t alarm me much. The same conservatism that leads him to decry judicial overreaching in the privacy and civil rights contexts is part and parcel of a larger conservatism that distrusts reckless grandiosity…Roberts cares a lot about looking temperate, and that isn’t a bad thing in a judge.” As Senators Ted Kennedy and Patrick Leahy turn up the heat on the Roberts nod, Slate‘s Dahlia Lithwick argues that, at the very least, he seems temperamentally unsuited to be a judicial bomb-thrower. That’s good, ’cause even with today’s news of a missing civil rights folder and a possible conflict-of-interest in a terrorism case, there doesn’t yet seem to be a silver bullet that could derail this nomination. Update: Dahlia Lithwick reconsiders after pondering Roberts’ “Woman Problem.”
“Hidden in Plain Sight.”
“‘I’ve long assumed that once John Roberts was confirmed for the D.C. Circuit that just like Clarence Thomas and Antonin Scalia, he was headed to the Supreme Court,’ Aron says. ‘I also knew, based on his thin public record, he would be the hardest nominee to challenge.'” Salon‘s Michael Scherer examines the reasons behind the surprisingly smooth sailing for John Roberts thus far. Recently released documents indicate he’s clearly a dyed-in-the-wool Reagan conservative, but that, however discomfiting, isn’t in and of itself enough to thwart his confirmation. Of course, the White House is still holding on to his Bush Sr.-era records, and I for one am curious to see how Roberts here conducted himself under Ken Starr’s tutelage (and during Bush v. Gore, for that matter.)
Freak Show by Fiat.
Stymied by the Senate, Dubya looks to sneak Bolton into the UN with a recess appointment, perhaps as early as this Friday. “Senate Democratic leaders have removed a possible hurdle by signaling that they would not use a recess appointment of Bolton to hold up Bush’s nomination of John Roberts to the U.S. Supreme Court.” Update: Next week?
Judge Roberts, Judging Rove.
Federalist Society or no, John Roberts now seems almost assured of winning confirmation as the Supreme Court’s newest justice (barring an eleventh hour revelation of impropriety, of course.) So, the Dems plan for the next best thing, which is to use the Roberts hearings as political theater with which to expose general right-wing looniness. Hmmm. Might work, I suppose. Hopefully, the Dems will keep their eye on the ball and make sure any gamesmanship on Roberts doesn’t suck the press away from the still-growing White House felony investigation, which now seems to include possible perjury and obstruction of justice charges for Rove, Libby, et al. Update: Wilson’s revenge? Salon suggests the operative law in the Rove case may be the Espionage Act of 1917, which isn’t what you’d call one of progressivism’s better moments.
Mister Roberts.
“What the social conservatives want is someone who will overturn Roe. v. Wade and change the court’s direction on privacy…But [Roberts] represents the Washington establishment. These Washington establishment people are not revolutionaries, and they’re not out to shake up constitutional law. They might make course corrections, but they’re not trying to sail the boat to a different port.” So, John Roberts. (I was traveling/working and missed out on yesterday’s Clements bubble.) Early word seems to be that he’s a tried-and-true conservative — A member of the Federalist Society, he was a Rehnquist clerk and a protege of Ken Starr — but not necessarily an ideologue or throwback. He seems a bit shaky on civil liberties, at least if you’re a Guantanamo inmate or a 12-year-old eating fries on the DC Metro. (And, of course, there’s the worrying inconsistency on Roe v. Wade.) But, my first impression, like many, is that Dubya could’ve picked a lot worse. Still, let’s get him before the Senate and see what comes out. Update: Hmmm…questionable on the environment, voting rights, and church-state separation too.