If John Roberts had been the deciding vote on the Court for the entire twentieth century...
Pop quiz: what is the left’s position on the Roberts nomination?
If you don’t know, you aren’t alone. Leading politicians don’t seem to know. The issues page of the Democratic Policy Committee’s website doesn’t mention Roberts or the Supreme Court. Nor does Democratic Leader Nancy Pelosi’s issues page. Major think tanks don’t help either. The Center for American Progress – which is supposed to stand toe to toe with Cato, Heritage, etc. – has not released a formal statement on the nomination since July 20. And the media reports, appropriately enough, spell confusion. On Tuesday, the Washington Post rant a story entitled “Roberts Unlikely To Face Big Fight.” On Wednesday, the headline read “Democrats Feel Heat From Left On Roberts.”
Barring an unforeseen bombshell, John Roberts will become an associate justice by October 1. But what worries me is that the confusion will obscure the fundamental message that there are dramatic differences between the Article III nominees of radically conservative administrations like this one and the nominees of progressive (or even moderate) presidents.
In that regard, I’m glad to see progressive groups discussing potential impacts and outcomes. The document and process arguments are important (particularly in setting the stage for future, potentially more contentious, nominations); but if Democrats want to strike a chord with American voters, they’ll need to focus national attention on how John Roberts’s approach to legal questions will impact lives. If John Roberts had been the deciding vote on the Court for the entire twentieth century, what would America look like today?
No doubt that is a loaded question, but it isn’t a rhetorical one. The answers are crucial. Instead of looking like the obstructionists Republicans are portraying them as, Democrats should be taking the lead in the most important judicial discussion the country has had since the Bork nomination.
The biggest problem with attempting to block a nominee to the Supreme Court is that over the past 50 years the appointment power has largely been viewed as a presidential privilege obtained by winning an election, meaning that unless the nominee is blatantly unqualified they should be allowed to serve on the court. If the public can not grasp the importance of the power to appoint justices to the Supreme Court for life during the course of a presidential campaign (frankly, the only time when the vast majority of the public that would ever pay attention to politics is, in fact, paying attention), attempting to make the point during the nomination process tends to seem like sour grapes (especially when the feckless press refuses to engage in real discussion of the issues).
When push comes to shove, the politics of the Supreme Court are too difficult to put into sound bites unless they apply to the outcome of Roe v. Wade. As an example, ask anyone you know what Alden v. Maine is and why it is central to Rehnquist's legacy and they will probably look at you as though you had sprouted a second head.
Ultimately, the time to oppose the Roberts nomination was at the polls in 2004.
August 17, 2005 5:51 PM | Reply | Permalink
August 17, 2005 6:08 PM | Reply | Permalink
Oh, I'd believe that... if we were talking about Republicans. Dems have little talent for being devious.
August 17, 2005 6:16 PM | Reply | Permalink
If he's honest about his position on judicial restraint and his admiration for Oliver Wendall Holmes and Felix Frankfurter, America would have had bans on child labor and minimum wage laws decades earlier.
Roberts' substantive positions are very rightwing and I expect very bad decisions when he's interpreting statutes-- which is a large part of the Supreme Court's work, which people often forget.
But bad decisions on statutes can be corrected through new legislation, but the issues we may deal with for decades is whether Roberts blocks progressive legislationa passed in the future. Sandra Day O'Connor was quite willing to overrule Congressional laws, but since relatively little broad progressive legislation could get passed in the last couple of decades, that didn't matter much.
But it is quite possible that in some future period, a judicial restraint person like Roberts -- if he is truly that and not posturing -- could end up being better for progressives than a "moderate" who is willing to strike down any legislation that they feel isn't moderate enough.
A vote that will matter for decades is ultimately very hard to calculate.
August 17, 2005 6:23 PM | Reply | Permalink
The biggest problem with attempting to block a nominee to the Supreme Court is that over the past 50 years the appointment power has largely been viewed as a presidential privilege obtained by winning an election, meaning that unless the nominee is blatantly unqualified they should be allowed to serve on the court.
Clinton won at the polls -- in a far more convincing manner than Bush did -- and had to vett his SC picks with the Republicans. Why is it Republicans who win at the polls get the "privilege" of choosing their SC pickes, but Democrats not?
August 17, 2005 6:32 PM | Reply | Permalink
Clinton did not have to do anything regarding his nominees. Of course, Clinton had the recollection of the absurd scandals that surrounded his nominations for Attorney General and did not want the embarrassment of going through that type of exercise again. Furthermore, it is good governance to include the minority to some degree. Merely because Bush and the current Republicans do not practice the same type of cooperative governance that Clinton did is no reason to abandon it now.
Also, whether Clinton won at the polls in more convincing fashion is certainly debatable -- he never broke 50% of the popular vote.
August 17, 2005 7:02 PM | Reply | Permalink
Clinton didn't have to cooperate with Republicans regarding his picks; he wanted to. It was (ex ante) useful towards gaining their cooperation and it didn't cost him much if anything since he ended up appointing two Justices who pretty closely reflected his ideology. Neither Ginsburg not Breyer is as liberal as Brennan or Marshall -- but that's not what Clinton wanted, as his appointments to other courts bears out.
Bush, on the other hand, doesn't have to cooperate with Democrats, due to GOP control of Congress, and so he doesn't want to. The difference is less one of circumstance than one of character and disposition.
August 17, 2005 7:53 PM | Reply | Permalink
Our problem is that the movies have us all conditioned to expecting villains to look and act like villains. They have to snarl, have terrible posture, bad teeth, bad hair, etc. We just don't know how to handle a villain who looks like the hero. But, in my opinion, Roberts will be on the court by the end of the year no matter what Democrats want or try. About all we get from a heated opposition to him is a loss of still more votes. It was a brilliant appointment by Bush.
August 17, 2005 8:04 PM | Reply | Permalink
Also, whether Clinton won at the polls in more convincing fashion is certainly debatable -- he never broke 50% of the popular vote.
Considering that Clinton was in a three way race and Bush not, that would be one interesting, and short, debate.
August 17, 2005 9:30 PM | Reply | Permalink
Only if you consider Ross Perot to be a "serious" candidate and not just a protest or "none of the above" candidate.
August 17, 2005 9:57 PM | Reply | Permalink
Only if you consider Ross Perot to be a "serious" candidate and not just a protest or "none of the above" candidate.
At one point Perot was leading in the polls during the 1992 race. That's a lot of "protest" support.
At any rate, "protest" or not, Perot's campaigns were the best funded and organized third party campaigns in decades; perhaps you have to go back to TR's run as the Bull Moose candidate to find an equivalent. That seems rather "serious" to me.
August 17, 2005 10:17 PM | Reply | Permalink
Consider the field tactics of how the past two elections were delivered to Bush. Imagine what added restraints Roberts might launch to constrict rights such as voter access to polls, ballot counting disputes.
Bush junior has a group of smart people doing the ground work; they all are voting to have Roberts on that team now to accelerate the dash into century XIX. Roberts' environment policy is actually early century XIX, absolutely ignoring modern pressures on environment.
Bush junior is unsigning treaties and heating up international relations. How much would Roberts' view of separation of powers and trimming of Congress and Court powers affect US and UN history for three more decades. Certainly the answers to these basic conceptual questions would be sufficiently generic that he would be ready to answer.
I bet Christopher Cox at SEC likes the idea of Roberts leading SCOTUS into neo laissez faire economic policy.
What will be interesting is the ex tempore repartee; some Senators still can debate if a topic winds the stem.
August 17, 2005 11:00 PM | Reply | Permalink