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.