Roberts may be the Dems’ best-case scenario

Let’s accept one thing: regardless of what happens to the Roberts nomination (and it looks like we can expect some hot air early, followed by a sunny confirmation, and a zero percent chance of filibuster – so bluster, but no buster) and the eventual retirement of Rehnquist (which didn’t happen this year, but probably will before 2008), George W. Bush isn’t going to nominate anybody that the Dems like. So the questions for loyal opposition leaders then become: What’s the best-case scenario? What can we live with? Who do we hate the least? Etc.

John Roberts may well be about the best the center and left of the American political spectrum can hope for. As John Yoo says in today’s Houston Chronicle:

Democrats should recognize an olive branch when they see it.

By choosing John G. Roberts to replace Sandra Day O’Connor on the Supreme Court, President Bush came as close as possible to finding a non-ideological, consensus nominee who can also lay claim to being a Republican.

Potential nominees such as Attorney General Alberto Gonzales, or federal judges Edith Brown Clement, Edith Jones, Michael Luttig, Michael McConnell or J. Harvie Wilkinson, rightly or wrongly would have prompted intense opposition in the Senate for their written views on abortion, affirmative action, religion, race or the regulatory powers of the federal government.

But Roberts has no far-reaching ideology, no creative articles, no revolutionary plans for constitutional law. He looks like an emblem of the Washington establishment: currently a judge on the U.S. Court of Appeals for the D.C. Circuit, commonly referred to as “the second-highest court in the land”; deputy solicitor general under President George H.W. Bush; associate White House counsel under President Ronald Reagan; clerk on the Supreme Court to then-Justice William Rehnquist; managing editor of the Harvard Law Review; summa cum laude Harvard graduate. If he had gone to St. Albans for grade school, he would have been perfect.

He is most likely to follow the center of the court in its current direction, and he may try to engage in course corrections, but as a standing member of the Washington establishment he won’t try to turn the ship around or steer it to a completely different port.


While projecting future voting records for SC Justices is an iffy proposition, this is nonetheless a pretty sensible take. As I said a few days ago, I certainly expect Roberts to be a wonderful friend to corporate interests, and believe that’s probably why he got the nod. But even if that pisses me (or you, or your brother-in-law, or whoever) off, let’s be frank. This is America we live in, and there are no hanging chads left to be counted on the issue of “late Capitalism” style free enterprise. Further, I don’t know that I see a lot of Dem leaders passing on the opportunity to buddy up to moneyed interests or steer the pork wagons and development engines away from their districts.

Even for those of us who like the term “kleptocracy,” this confirmation process will take place in the real world, not in a salon. So let’s be honest about the hand we’re playing. If you’re dealt an unsuited 9-2, there’s not going to be a winning royal flush in your immediate future.

Chicago Sun-Times columnist Mark Steyn rightly notes that the Dems had their chance to pick this Justice – in the 2000 and 2004 elections – and emphasizes “the importance of winning at the ballot box, which you do by promoting clear ideas confidently stated.” I don’t fully agree with how Steyn frames all phases of the past five years, but it’s certainly true that for the 2k4 season the Democratic party’s movin’/shakin’ activist wing served up a multi-millionaire charisma void and tried to sell him as a man of the people. Wind-surfing, duck-hunting, tank-riding (oops – scratch that one, that was Dukakis) John Kerry hit the trail, and with most of the party’s best strategists nowhere in sight (well, that’s not technically true, either – James Carville, who’s as smart as he is evil, was right there on the pundit box, so we could see him plain as day, arguing the Kerry case from as safe a distance as possible).

If I’m going to be mad at anybody about the SC situation (and so far I’m not really mad, although I’m awfully curious), it shouldn’t be the Bushies, who could frankly have offered up a lot worse. No, if I’m going to be mad, it’s at a Democratic leadership that in Decision 2k4 provided Bush with the next-best thing to a bye. Kerry spent most of the campaign looking like the team that won the play-in game against SW Little Sisters of the Poor State at Mudbucket and now finds itself trying to figure out how to deal with the top-seeded and undefeated Karl Rovers from All-World U. The fact that the final score was as close as it was had pretty much nothing to do with Kerry. It was about the Anybody But Dubya vote and a tree stump could have done at least as well.

Yeah, I’m being harsh. I’m glad I haven’t seen Dean, Pelosi, and Biden on TV lately dissing each other over Dean’s strategic and enthusiastic attacks on, of all people, the Republicans. But I haven’t forgotten it (it wasn’t that long ago, after all) and I haven’t seen any signs since that things have changed. They seem to want to be the opposition party, but haven’t got much idea how. Part of that is cluelessness, and part of it, I suspect, is that our two parties ultimately have more in common than they’d like to admit, and they’re trying to find a path of dissent that’s both compelling to the electorate and safe to their own interests.

So the message for the Democrats on the Judiciary Committee is this: use the forum not to further poison the process, but as a platform from which to begin to articulating a vision for how you think America ought to be. Mid-term elections are just around the corner, and public is listening for “clear ideas confidently stated.”

Then confirm Roberts 100-0. There may be things I don’t like about him and there may be things you don’t like about him, but he’s the best you can probably hope for from this administration. And by playing the game thusly, you pave the way for how things go the next time somebody from your party gets to appoint a Justice.


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