Balkinization  

Wednesday, September 07, 2005

Why it pays to stand up to the President on Supreme Court nominations

JB

Even though the Democrats do not currently control the Senate, they should fight hard on the Roberts nomination if they have principled objections and if they reasonably believe that Roberts would routinely interpret the Constitution in ways they strongly disagree with. The fact that a second slot has opened up makes this opposition even more important. Here's why:

History teaches that Presidents moderate their choices for Supreme Court nominees when the Senate is controlled by the opposite party; they also do so when Senators from the opposite party do not control the Senate but can credibly threaten to make the confirmation process difficult and consume substantial amounts of the President's political capital. It may seem strange, but the best prediction of the future trajectory of a Supreme Court nominee is the vector sum of the political forces at play at the time of confirmation. When Presidents have faced Senators who can make credible threats to cause them problems, they generally offer more moderate choices.

Three key examples of this phenomenon in recent years are Harry Blackmun, who was Nixon's third choice, Anthony Kennedy, who was Reagan's third choice, and David Souter, a "stealth nominee" who was selected by Bush in order to avoid a repeat of the Bork nomination. All three turned out more moderate than movement conservatives would have liked. Bush's other choice, Clarence Thomas, was a movement conservative but Bush chose him on the assumption that the Democrats would not refuse to confirm a black nominee to replace Thurgood Marshall. Bush was ultimately correct in this assessment, but he misjudged the amount of political capital he would have to expend.

Thus, the most important opposition to a Supreme Court nomination occurs *before* the nominee is publicly announced. After the announcement, the President is likely to dig in his heels and fight. But Presidents may choose more moderate candidates to avoid a fight in advance.

What does this have to do with Roberts? Roberts has already been nominated. (Indeed, he has been nominated twice). Moreover, his chances for confirmation still look solid. Nevertheless, because of Chief Justice Rehnquist's death, President Bush now has an additional appointment, who will replace the slot held by Sandra Day O'Connor, who has been a swing Justice. That appointment now looks even more crucial than Roberts' appointment as Chief Justice.

By putting Roberts through tough questioning, asking for additional information that the White House refuses to produce, and by voting against Roberts if Democratic Senators are not satisfied with his responses, Democratic Senators do two things, both quite important.

First, they articulate their own vision of the Constitution and place it before the American people. The point is not to oppose for opposition's sake, but for the sake of key constitutional principles that are at stake.

Second, and equally important, Senators signal that the President will not get a pass on his Supreme Court nominations and that the Senators will fight hard against candidates for the O'Connor slot who are not moderate or centrist. Put another way, by opposing Roberts they signal that the President will have to consume considerable political capital if he wants to try to shift the Supreme Court markedly to the right. The President may ultimately get an ideologue through, but he will be bloodied in the process and his agenda derailed. Given that the President already faces declining poll ratings, and problems involving Iraq, the economy, the fallout from Katrina, and rising gas prices, the Democrats' threat becomes more credible still.

In short, Democrats have everything to gain from a serious discussion of Roberts' constitutional philosophy and very little to lose. I use the word "serious" advisedly. Democrats should not engage in character assassination or stoop to unfair attacks. Rather, they should put their own views about the Constitution before the American people, and if they believe Roberts does not share those principles, they should explain why that is so and why he would not be good for the Court. They should stand up to the President and tell him that they demand a more centrist, moderate nominee and that they will impose political costs on the President if he attempts to nominate an ideologue. If they are sincere, determined, and forthright, they have a very good chance of getting a more acceptable second choice from Bush.


Comments:

Please forgive my ignorance, but what is meant by "political capital"? I have a sense of what it means, but would someone be so kind as to cite a few concrete examples?
 

I’m inclined to agree with this 100%, Jack . . . but one thing is nagging at me. You urge the Democratic Senators to “stand up to the President and tell him that they demand a more centrist, moderate nominee and that they will impose political costs on the President if he attempts to nominate an ideologue,” to “signal that the President will not get a pass on his Supreme Court nominations and that the Senators will fight hard against candidates for the O'Connor slot who are not moderate or centrist,” and to signal “that the President will have to consume considerable political capital if he wants to try to shift the Supreme Court markedly to the right. The President may ultimately get an ideologue through, but he will be bloodied in the process and his agenda derailed.”

You do not say so expressly, but I assume what you are asking the Democratic Senators to do, as a practical matter, is not only to articulate why they have strong principled opposition to Roberts’ constitutional philosophy, but also to vote accordingly. That is to say, I think you’re arguing, quite reasonably, that because Roberts is for all intents and purposes the equivalent of the Chief Justice he is replacing, there should be at least as many Democratic votes against him as there were against Rehnquist in 1986 – 33, and ideally as many as 40 or so.

Such a 67-33 or 60-40 vote certainly would demonstrate to the public that the Democrats have a constitutional vision quite different from Bush/Roberts. And that’s no small thing – reason enough, I agree, for such a vote. But you seem to be suggesting that such a vote would accomplish more than that. I hope you’re right – but I have my doubts. Would such a vote impose political costs, or require the President to expend political capital? Why would such a vote indicate to the President that if he nominates a more extreme candidate, “he will be bloodied in the process and his agenda derailed”?

Presumably, you mean to suggest that 33-40 votes against Roberts might signal that the Democrats would filibuster a more ideological nominee for the O’Connor slot. Perhaps – although I think it would be more important in this respect if the Democrats expressly promised a filibuster in the event of an extremist nominee. And in either case, such a threat would not be credible unless the Democrats actually had assurances from more than 40 Senators to filibuster a nominee who’s more right-wing than Roberts. Is Harry Reid at that point yet?

In any case, perhaps a credible threat of such a filibuster would temper the President’s next choice. But that’s by no means clear, is it?

One other thing: This whole discussion assumes that a more extreme, Scalia-like nominee would be more damaging to the Democrats' constitutional values than would a Rehnquist-like nominee, such as Roberts. For reasons we've discussed, I have my doubts: Rehnquist has had a much more profound (and, from our perspective, detrimmental) impact on the development of the law than Scalia or Thomas ever would, and I predict that Chief Justice Roberts will do much more to advance the conservative constitutional agenda than would a Justice Luttig or Jones, even if he might on rare occasion vote for the more "liberal" position in a particular case.
 

I wonder if you shouldn't consider the possiblity that the views of the party that controls the House, the Senate, the White House, the majority of state legislatures, and the majority of state governorships, aren't by definition within the mainstream, even if they aren't your views.

I'm not saying you have to accept this as a fact, but you might try the idea on experimentally.
 

1. No one here -- neither Jack nor I -- has suggested that the constitutional views of Rehnquist/Roberts are out of the "mainstream." For better or worse, Rehnquist was successful over 30+ years in bringing into the "mainstream" many ideas that previously lay outside it. Identifying the "mainstream" simply has nothing to do with our reasons for thinking that Democrats should vote no (other than that Democrats ought to be endeavoring to change the "mainstream" back to where it was before Rehnquist began shifting it).

2. In any event, what evidence is there that the views of Rehnquist/Roberts, or of Scalia/Thomas/Luttig/Jones, are shared by large majorities of the House, the Senate, the White House, state legislatures, and state governors? Do most Republican legislators, for instance, concur that Congress lacks the Commerce and/or section 5 power to enact the numerous federal statutes for which many of them voted but which the Rehnquist Court has invalidated?
 

"Senators will fight hard against candidates for the O'Connor slot who are not moderate or centrist."

"They should stand up to the President and tell him that they demand a more centrist, moderate nominee"

I would say that you don't KNOW what's "centrist" or "moderate". That you're victims of ptolemic thinking, of the belief that the center is where you stand.

It's not.
 

And Brett, I can just picture you on the fringe, although you may think you're mainstreaming while you are at the epicenter of the right wing ptolemic.
 

On the contrary, I'm no Ptolemic; I'm well aware that I hold fringe views, and am only bothered by this because it means so many people are wrong. ;)

Now, Roberts is, regrettably, not my brand of extremist, nor, fortunately, your's. But if you were to formulate his views at the most general level, and not in a deliberately perjorative fashion, you'd find they have a very high level of public support indeed. Maybe from a public that doesn't understand the implications of the general principles it agrees with, but still, they do support those principles.

That's why you so badly need the Court to agree with you, after all. ;)
 

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