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September 06, 2005

Good Enough, But Not For Us

Via Sam Rosenfeld, this bit from Mark Tushnet on the Roberts nomination is very much worth reading:

At this point, there’s no reason for a Democrat to vote to confirm Judge Roberts. My argument has two steps: the first is that Democrats should disagree with what they know about Judge Roberts’ constitutional philosophy ... and in this connection it’s irrelevant that that vision is not “out of the mainstream.” The second step of the argument is that all senators should have a reason for voting to confirm a nomination, and neither the fact that the president picked this person nor the fact that this person is an extremely talented lawyer is a sufficient reason to overcome disagreement with the nominee’s vision of the Constitution.

Excited italics are, of course, mine. But this is an important point. A fair gathering of liberal legal scholars have emerged to assure us that John Roberts is the sort of maniacal nutball that should send us diving for the Senate's self-destruct button. But calming though these editorials are, we shouldn't overstate their point. John Roberts is probably not an unreasonable nominee for Bush to back. But neither is he a reasonable nominee for Democrats to support.

The man is dedicated to a deeply different, often regressive, and profoundly limited role for the Courts. In this time of conservative politico-judicial ascendance, that may be the best we can get, but it's not something we should pretend we want. Unless Roberts gives some indication that supports the ideals that Democrats exist to uphold, he shouldn't be installed on the bench with any sort of Democratic imprimatur. He may not be crazy enough to stop (though the hearings could certainly change that), but neither is he progressive enough to support. So for 25 Democrats to already be hinting themselves in the "aye" column, hearings unheard, is a pretty sad commentary on the party's commitment to its beliefs in the face of punditocracy pressure.

September 6, 2005 in The Supreme Court | Permalink


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Tracked on Sep 6, 2005 2:20:38 PM


I am sure you are aware of the comparisons being made between the Roberts nomination and the Ginsberg nomination, where a huge majority of Republicans voted to confirm someone who was ideologically opposed to their view of Government.

From a tactical perspective, do you think that the Republicans made a mistake there? Certainly there are no signs that this decision has come back to hurt them, assuming at least that Ginsberg would have successfully been appointed even if the Republicans had fought hard.

Bottom line is, if Republicans choose they can put anyone they want on the court. They have enough power. The only real leverage the Democrats have right now to prevent that is if the Republicans are percieved as being to far from the mainstream they may suffer in future elections.

If Roberts is acceptable, and you fight him hard, and lose (which you will) if the next nominee is much worse you will basically have no leverage to fight them. You will have shown yourself to be unreasonable to the American people, and thus they will ignore your compaints about the next nominee.

If you cry wolf at any one who doesn't share your ideological viewpoint, people will quickly stop respecting your ability to spot actual wolves.

Posted by: Dave Justus | Sep 6, 2005 1:23:56 PM

And to think Scalia was voted on the court unanimously.

Posted by: Ugh | Sep 6, 2005 1:27:01 PM

It's not about fighting him hard, it'd about putting forth an alternative view of the judiciary and seeing if Roberts conforms. If he doesn't, vote no. Don't filibuster, don't hold him up, just don't give him our imprimatur. Quite honestly, I have no idea why this should be seen differently. As for Ginsburg, you know Orrin Hatch suggested her, right? I don't quite remember Reid or Leahy having a seat at the President's nominating table.

Posted by: Ezra | Sep 6, 2005 1:40:44 PM

At some point, Ezra, I'd be interested in hearing your view about the following strategy: vote yes on Roberts, so that you'll be in position to fight harder against a more conservative nominee in the future. When somebody votes yes on Roberts and no on the subsequent nominee (or tries to filibuster the subsequent nominee) that'll make it easier to convince people that the second nominee really is a crazy right-winger, and that something more than knee-jerk Bush hatred is going on here. I'm undecided at this point about what the best strategy is.

Posted by: Neil the Ethical Werewolf | Sep 6, 2005 2:53:37 PM

Thats a good point Neil. But ultimately, who do we have to convince that the second nominee is a crazy right winger (if he/she indeed is?) Who, exactly? Are there actually enough Republicans who can be swayed? If so, then maybe its worth the gamble. If not, then the only thing to think about is political ramifications of the filibuster. Ultimately, if the goal is to ensure that no crazy right-winger makes it in there, the Democrats need to decide how important their jobs are and the future of the is when trying to attain that goal. If there are enough Dave Justus' out there, we could be screwed.

BUT, the political climate in this country seems to be teetering on the brink now more than ever.

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