Tuesday, August 09, 2005

John Roberts & the marginalization of the Democrats

As I watch the nomination of John Roberts move forward, I am constantly amazed by how the Democrats have managed to completely marginalize themselves in the process. I'm sure the Republicans are grateful for the assistance, but I would like to see a modicum of competence from the other side of the aisle. Given that nothing has come out yet that would remotely stand in the way of the nomination, I'm shocked by the opportunities the Democrats let slip by.

The Democrats had a golden opportunity when Bush noinated Roberts to steal all or part of the credit. Roberts is about as moderate as the Dems could have reasonably hoped for-- Roberts's name even came up when one of the Gang of 14 was questioned about what sort of centrist candidate he was looking for. Rather than crowing about the fact that their firm stand for the judicial fillibuster forced Bush to nominate a moderate, rather than one of the more hard-line options, the Democrats just sat on their hands.

Actually, it was worse than sitting on their hands because they chose to start griping about the quality of the consulation they had with the President before the nomination. Leaving aside the fact that there aren't a lot of Senators that can pull that sort of complaint off without sounding like a petulant child, and the there are at best a couple of handfuls of voters who would care, that sort of complaint was a huge lost opportunity. Imagine if the Dems had come out instead and said that they were pleased with the degree to which they were consulted before the nomination and that they were pleased that their principled stand and their suggestions had lead to such a quality nomination. There is no way that Bush could realistically deny such a story without seeming petty (er, we did talk to Senators, but we didn't consult with them, and they didn't suggest Roberts), and this sort of story line portrays the Democrats in the Senate as an equal partner with the President rather than a relatively impotent check on presidential authority.

Now, in the run-up to the hearings, the Dems have utterly failed to articulate any coherent objections to Roberts. Yes, they've nitpicked a couple of briefs hes written and have made some noise about getting additional memos, but there is certainly no coherent idea that ties together whatever objections they might have. What we've heard in the press so far is that he's a particularly nice guy with a distinguished resume and a history of supporting a variety of causes. If the Democrats have any objections, they really ought to voice them before we decide to push for canonizing the guy.

Even better, a NYTimes article a few days ago discussion Sen. Leahy, ranking Democrat on the Judiciary Committee, points out that "Senate Democrats remain divided about how hard to challenge the nomination". Its like the Democrats are conditioned to such a deliberate pace that they always lose because they can never make the first move. Roberts was on most everyone's short list once the vacancy was announced, so this was hardly a shocking nomination. The Democrats needed to know whether they were going to put up a stiff challenge or whether they were going to co-opt Bush's thunder. Either approach would probably have worked when the nomination was made-- waiting a month neuters either argument and makes the Dems look like idiots.


Blogger Vincent said...

The announcement of John Roberts caught the Democrats off guard. Many were expecting a frothing-at-the-mouth über-conservative. But with the Karl Rove case dominating the headlines, Bush announced early.

Roberts was an interesting choice politically because he has a pretty small paper trail. The Democrats didn't put forth much of a response because they weren't sure whether to oppose him on substance or support him as the most moderate candidate that could be expected. The American public consistently support the Democrats when they oppose for principled reasons, but nobody wants a party that's obstructionist solely for the purpose of obstructionism.

I still am not sure how this will all play politically. The bigoted extremist wing of the Republican party (aka, Bush's base) are upset because Roberts helped a gay rights advocacy group win a case in the Supreme Court. (The American Taliban would prefer to treat gays as a subhuman apelike species for whom the love-thy-neighbour policy does not apply.) The left are worried about what rôle Roberts may have had in the Federalist Society and how this extreme conservative thinking might affect future Supreme Court rulings. In particular, many are worried that Griswold v. Connecticut may be overturned. (The American Taliban do not believe in evolution or the Ninth Amendment. [Or the First, Fourth, Fifth, Sixth, or Eighth, but that's a topic for another day....])

So in the end, it was a calculated gamble on the part of the Democrats not to have taken a strong stand on Roberts until enough information about him was unearthed. A flip-flop on him would look far weaker than taking the time to form an educated consensus opinion. Besides, politics goes on vacation during August. By the time Congress reconvenes, no one will remember what all the talking heads were saying in late July.

8/10/2005 12:20:00 AM  
Blogger Justin said...

Roberts was on almost every pundit's Top 10 list, so if the Dems were caught off guard by that one, they're more incompetent than I imagined.

Both parties have been looking for folks with minimal paper trails for most high-profile nominations for a while now. I don't see that Roberts has significantly less in the way of a paper trail than recent nominees, and there is certainly enough of a paper trail to figure out that unless there is a major revelation, his noination would sail.

I think the Dems indecision has cost them dearly. Yes, the American public has often sided with the Dems when they make principled stands. The problem is that outside a handful of politicos, no one knows that the Dems made a principled stand on the fillibuster (leaving aside the fact that the stand was far more political than principled). To the vast majority of the public, the two parties were arguing over who got to obstruct what with obscure Senate procedure. The Dems had a chance to explain to the majority that the nomination of a centrist jurist was the direct result of the fillibuster fight. There is no chance for them to make that argument now, let alone a month from now.

By immediately supporting Roberts, the Dems could also raise the stakes for Bush. Getting a SCOTUS nominee on the bench is always an important test of presidential power, had the opposition initially come out in favor of the nominee, though, the cost to Bush of a failed nomination would be huge. Had the Dems publically supported Roberts while privately (or through the various left-leaning groups involved in the nomination fight) looking for dirt, there would be little cost to them for doing an about-face on the nomination if and when something serious came out. If they eventually opposed the nomination, they'd been seen as courageous for changing their minds based on fresh evidence and Bush would take the fall for failing to vet the nominee. If they continue supporting the nomination, its a victory for them because they forced Bush to nominate a centrist. Either way, had they acter early, the Dems win. Now, they'll put up some feeble opposition, lose in a somewhat losided vote, and been seen as an insignificant player.

Do you seriously believe that Griswold is in jeopardy? Aside from being settled law, the right of a married couple to contraception is hardly a controversial position. Even if Griswold were reversed, that would merely allow states to enact stupid laws that bar contraceptives. I seriously doubt any state would pass such a law today.

I assume that your concern is really with the abiity of judges to discover rights in the penumbras of amendments. If that's your concern, I cannot agree with you. Judges ought not be making new laws. If judges are allowed to "read between the lines", they get to decide that the Constitution means whatever they'd like it to mean. I happen to believe that if you find yourself interpreting the Constitution in such a way that it always supports your personal beliefs, you're doing something horribly wrong.

I would take the penumbras argument much more seriously if its proponents were at least marginally internally consistent. For example, how can it possibly be constitutional for a person to be imprisoned for using or selling drugs? If there is a Constitutional right to martital privacy, surely there is a right to individual privacy. If there is a Constitutional right to absolute control over ones body during the first 6 months of a pregnancy, surely that right extends outside the bounds of pregnancy and to both genders. Given that, how can there possibly be a law against a person ingesting whatever chemical he or she desires?

As a matter of law, I have no problem with legislatures deciding that society accepts certain limits on the control I have over my body. I believe that it is good public policy to prevent me from selling my kidney, to prevent me from taking drugs, to allow me to purchase contraceptives, and to allow me (were I female) reasonable options to terminate a pregnancy. As a matter of Constitutional interpretation, though, I cannot see penumbras so clear that they would allow me to differentiate the restrictions I like from the restrictions I dislike.

8/10/2005 10:46:00 AM  
Blogger Vincent said...

Wisconsin has passed a law prohibiting the dispensing of contraceptives on state university campuses. Governors Romney and Pataki have vetoed legislation allowing easier access to morning after pills. (In Virginia, there's a governor's race this year in which the Republican candidate may very well outlaw abortions if given the chance; can it be long before he comes out against access to contraceptives as well?)

So what does it take for a state to pass a stupid law on contraceptives? A stupid, head-in-his-ass Republican....so stupid that he (emphasis on "he") thinks that making it harder to prevent pregnancies will lower the abortion rate.

8/11/2005 11:23:00 PM  
Blogger Mwal said...

Vincent, is it your view that the WI bill & the legislative stati-in-quo of MA + NY regarding emergency contraception are prohibited by the US constitution?

(That Wisconsin bill, btw, seems to apply to emergency contraception rather than to all contraception. But that may be immaterial.)

8/12/2005 12:42:00 AM  
Blogger Justin said...

Yes, legislators introduce and pass stupid, harmful bills. Banning the prescribing and dispensing of any legal prescription drug on a college campus ought to provoke outrage. Voters and activists ought to be working hard to defeat nimrods that are inclined to legislate this poorly at the polls.

Just because a law is bad policy, just because a law is harmful, just because a law is stupid, however, does not mean that the law is unconstitutional. Regrettable as it may be, legislatures have certain perogitives-- one of them being to pass bad laws.

While practically, I'm happy that the SCOTUS doesn't agree with some of my judicial interpretations, and I don't as a matter of practicality endorse the Constitution in Exile movement, I would like to see courts reign themselves in a bit.

If courts were more hesitant to overrule legislatures that pass laws the judicial branch doesn't like, I would expect to see a marked decrease in the number of bad laws passed and a marked increase in the ability of liberal candidates to win elections. As it stands today, liberal activists have little need to do the heavy lifting of presenting a message to voters, building coalitions, and the like-- they just need to file suit whenever they lose in the legislature. Of course, this leads to more legislative losses because there is less and less incentive to find and present a message that voters respond to, less and less incentive to campaign for legislators that agree with them, less and less ability to strongly oppose legislators that pass bad laws. Liberal activists tend to be very good at talking to their narrow constituency and in persuading judges. They tend to be rather poor at organizing grass-roots support for their ideas, which is the essential building block of winning elections.

Now, of course, conservatives have begun to emphasize that they can turn their executive and legislative dominance into judicial dominance by appointing more and more conservative judges. Liberals appear to be reacting to this emphasis by seaking to protect their advantages in the judicial branch but appear to be doing little that would allow them to seriously challenge for legislative dominance. As long as the top liberal activists find it more efficient to seek change by running law suits rather than by running for office, the Democrats are going to be stuck with waning grass-roots support and an increasingly marginalized presence in the halls of power.

8/12/2005 04:12:00 PM  
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