Voting for the Next Nominee

As Senate Democrats weigh the pros and cons of voting for John Roberts, one thing they'll have to consider is what ramifications their opposition might have on Bush's next Supreme Court nomination -- the one to fill Justice O'Connor's seat.

Mark Tushnet argues that means they should vote no in order "to signal that the President ought to move toward the center with his nominees."

Oh really? I'm not convinced. The president has a majority, so it's not as though he really needs the Democrats' votes. Further, if this confirmation process convinces Bush that the Democrats will not give him the satisfaction of being a consensus-builder, why should he bother to attempt to build a consensus over his second nominee? If he figures they will oppose anyone he puts up for O'Connor's seat, he might as well nominate someone who's as far to the right as his base desires. The Dems might then filibuster, and the GOP might choose to resort to the so-called nuclear option, but that's all speculation. (We'll discuss that if and when it happens.)

Naturally, a "distinguished conservative nominee" is precisely the outcome the staunchly conservative Wall Street Journal (subscription required) editorial board hopes to see. They believe that "especially with his other troubles, Mr. Bush can't afford to alienate his most loyal supporters in the hope of buying a confirmation truce." They fear he will "play it safe" to try to keep his approval rating from sinking further.

The generally liberal Los Angeles Times editorial board (also unsurprisingly) sees things a different way. In their opinion, because of the many things hurting Bush at the moment, "from Katrina to Iraq, he'd be well served by making another sensible move ... in replacing O'Connor."

And why shouldn't Bush play it safe? If he is conciliatory in his pick, as it appears he was (relatively) in choosing Roberts, he will help give centrist voters a favorable impression of his party. His base might blame him, but they would have no reason to pin the blame on their members of Congress at the next election because everyone knows the Senate doesn't select the appointees, it merely confirms or rejects them.

Even if Bush's base does turn against him, does it really matter for any practical purpose? That is, it might drop his approval rating among Republicans by a couple points, but I'm not convinced that would make much difference. Bush can't run for another term, his evangelical base certainly won't defect to the Democrats, and if he proposes something that suits their tastes, it's unlikely they'd oppose it just because they were mad about his Supreme Court choice.

A Post editorial suggests that "Mr. Bush would do a public service by consulting widely and meaningfully" before making his second selection. The editorial notes that putting Roberts up for Rehnquist's seat has little impact on the balance of the court, as both share an ideology that is very much on the conservative end of the spectrum, and that Roberts is "unlikely to move the court substantially to the right." (The Journal editorial on Roberts's nomination for Chief generally agrees with this assessment.)

Peter Shane and Reed Hundt, writing on the Post's op-ed page, think Roberts is actually to the right of Rehnquist on the question of presidential power -- he seems to defer to the executive, rather than try to keep it in check. Shane and Hundt are understandably uncomfortable with that approach. (And who can blame them? The office of president has been steadily gaining power for the last couple of decades, and wasn't excessive executive power part of the reason we cut loose from Britain back in the day?) They write, "one-party government during a period of national anxiety over terrorism is a fertile breeding ground for presidential overreaching." Now, perhaps more than any time in recent memory, the judicial check on the executive is a must.

By Emily Messner |  September 14, 2005; 12:15 AM ET  | Category:  Beltway Perspectives
Previous: The Hearings: Party-Line Differences Without Partisan Rancor | Next: Roberts: A Good Lawyer Can Argue Just About Anything


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My initial reaction is to say there is no way that Bush would ever "play it safe". But after his recent admission of culpability in the federal response to Hurricane Katrina's devastation I saw a pig fly!

Posted by: Bob P. | September 14, 2005 07:06 AM

The president could nominate Alan Dershowitz to replace O'Connor and the Senate Dems would still squeal about moving the Court to the right (he still favors legalizing the torture of potentially innocent terrorists, right?).

If Bush is going to take their abuse no matter who he nominates, he might as well earn their scorn and nominate Janice Brown.

Posted by: Aaron | September 14, 2005 07:55 AM

This whole confirmation process has gotten out of hand. It's more like a Hell Week at a fraternity than an unbiased question and answer process.

Posted by: Harry L. | September 14, 2005 11:03 AM

This whole confirmation process has gotten out of hand. It's more like a Hell Week at a fraternity than an unbiased question and answer process.

Posted by: Harry L. | September 14, 2005 11:03 AM


Judicial check? How can there be any, when folks roll over and play dead with Roberts? They're doing the same thing they did with the ex-FEMA Brown's confirmation. Ask some light questions, play to the camera, and they'll vote for him later. If Roberts takes us down the path of unbridled fascism, who are they going to complain to if he desolves the congress or the senate?

You don't get a second chance. The FEMA fisaco is a good example of the FIRST chance bungling.

The senators aren't going to do squat, as they love elitists. They love the Ivory tower types that you'd consider a dunce if you even TRY to question them (anyone get it yet about Roberts? The Republicans put up someone so shiny, it'll make a fool of anyone else questioning the soundness of his opinion. It also is a smack about Affirmative Action -- see what qualifications mean?).

What we need is a guy, that in high school, that used to check a domineering teacher (who could crack jokes and tie the teacher in knots). Someone who may not have the degrees, but sure has the street smarts (which is unlikely Roberts has) to tackle someone supposely smarter than him.


Posted by: SandyK | September 14, 2005 02:04 PM

Bottom line is Roberts will be confirmed. Why the debate? There will be a challenge for the next opening, but the conservative bible belt will prevail, and human rights, which I would include as women's rights, will expire.

My view, law is for the wealthy who control the politicians. This is a patrichal society benefiting white men, and it always will be. Control over reproduction, even in this overpopulated world, will remain a man's domain. Men still control women, and in many cases, without responsibility. The control of reproduction is the biggest issue in the undercurrent of all disturbances in the world today.

Judge Roberts seems to be a reasonable judge, but has failed to ask questions on women's (what a joke) rights.

Posted by: Linda S. | September 14, 2005 02:27 PM

Speaking as an outsider to your judicial process in the US (I'm Scottish), I thibk that it's important for US citizens to sometimes take a step back and look at the bigger picture once in a while. I don't mean any critiscism by this, but I think it's important to be grateful for the system that you have! Here in the UK, the idea of our elected representatives having an oppurtunity to question a judicial nominee would be seen as utterly unacceptable. As for the idea that a court could review and, if appropriate, strike down unconstitutional acts by the executive - simply not possible. Come to think of it, a Constitution would be nice too. Please don't lose sight of that when things are becoming partisan. The US Constitution and system of governement is one of the best ideas man has come up with.

Posted by: Craig T. | September 14, 2005 02:46 PM

Bush will pick Gonzales. This is his chance to favor a friend and make history for the Court. Never underestimate cronyism: the hallmark of this administration.

Alternative theory: Appoint Edith Brown Clement. Who is going to vote against a somewhat moderate judge from New Orleans now?

Posted by: Isabelle | September 14, 2005 02:46 PM

A few comments:

First, I haven't said much one way or the other about Roberts, because I didn't know much about him. And I still don't, and I guess that's the idea. He certainly seems qualified, and he seems committed to the role of the Court. He is obviously to the right as illustrated by his career path, but it's impossible to tell exactly what that will mean. He has professed his respect for Stare Decisis, so I guess we just have to trust him on that. My take from his whole career is that it has been carefully designed to lead him here, and I think that is more of a good thing that a bad one. It leads me to believe that he really does respect, even idolize, the role of the court and the ideal of the wise and impartial justuce as arbiter, more than he cares about his political leaning. I think that I believe that he will do his best to interpret the constitution and the laws rather than try to shift the country's policies to the right. Like I said, it's really hard to tell, and justices often evolve on the court, but that's my two cents from what I've seen so far.

Second, as to Emily's comment that the president has been gaining power for decades; well, maybe, but I think it's too complicated to give a blanket statement like that. Certainly, the general view that I learned in high school was that Nixon had done the nation a disservice through Watergate because of the degree to which the scandal had WEAKENED the office of the presidency. Carter unquestionably weakened it further with the general lack of comepetent leadership (I think that we sometimes forget what an incompetent president he was now that he has been such a wonderful ex-president for so long). On the other hand, Reagan did much to restore and maybe even extend the power of the office, both with military initiatives (Grenada, Libya) and domestic exercises of authority (firing the striking air-traffic controllers and cutting federal pensions). I don't really see how the office has gained or lost much power under the G.H.W Bush or Clinton administrations. Under the current Bush I think there was some temporary increase in the lattitude given the office due to the 9/11 attacks, as is only natural in the time following such an event, but if anything, his general unpopularity has more weakened than strenghtened the office in the time since. Without any formal analysis of a list of various executive powers through the years, I'm not sure that I can agree, at least from my own anecdotal survery of history, that the executive branch has more power now that it had previously. I would certainly say that FDR wielded far more power throughout the depression in implementing the New Deal than Bush in able to exercise today. I'd be interested to hear what others think about this point though.

Finally, as to Linda's comment that "the control of reproduction is the biggest issue in the undercurrent of all disturbances in the world today," I'd love to hear what you mean. I don't think the war in Iraq or Al Qaida's ongoing war against the West has much to do with "control of reproduction." Nor do I see the connection to genocide in Rwanda, Chechen Seperatism, the devastation caused by Hurrican Katrina, or the NL Wild Card Race. All of these things are "disturbances in the world today," and major ones at that, that seem to have little or nothing to do with the "control of reproduction." Am I missing something?

As for Judge Roberts asking questions on women's rights, his task this week is to answer questions, not ask them, and he answered the only question on women's rights that anyone asks about, which is whether or not Roe v. Wade is good law. What else would you like him to say?

Posted by: Sonny | September 14, 2005 03:10 PM

I have to respectfully disagree with Sonny's comments on executive power and shamelessly kiss up to Emily by saying that executive power is a real golden goose that has been absent from this hearing by and large.
This is, of course, at least partially because the Congressional notions of Federalism, whereby the Congress essentially has been able to pick and choose for themselves which powers they reserve to te states, has been under attack ever since US v. Lopez in 1995, and they naturally want their power over this subject back. Even Biden's most pointed criticism of Roberts wasn't actually directed at Roberts, but at Rehnquist (which, by the way, "The Post" predicted would happen in an article about Specter that appeared before Rehnquist's death. The criticism involved the Violence Against Women Act and the Courts decision to roll back the near infinite ways they have devloped to exercise police power indirectly through the states.
At the same time that Congress is licking it's wounds in this area, it seems utterly unconcerned with the authority that executive branch has accumulated. The President, whether you want to talk about Bush I, Bush II, OR Clinton, have moved American soldiers around the world like chess pieces. Congress' actual authority in war power has diminished to near non-existence. Even the power of the purse, which usually puts Congress in a position of strength, hamstrings them in war because the President can act first and ask for money later. Essentially daring Congress to pull the plug on troops in harm's way, which they cannot do for obvious reasons.
And then there is the large bureacracy, which is not only answerable to the President, but generates the finances and inustrial opportunities that in turn create the need for the very interest groups that pressure candidates in congressional elections (the Military Industrial Complex comes to mind, but does not stand alone as an example).
The major rebuke of Presidential Power in our age was not Watergate, to my mind, but Iran-Contra. Had the Reagan administration succeeded in raising its own funds for its own operations, the upper hand of the executive would be near total. That it failed, and that no President has attempted a repeat (to the best of our knowledge) since then is a sign that the battle is not lost. It is not a sign that the battle is over.

Posted by: Steven | September 14, 2005 03:40 PM

Does any of this really matter. A judge is going to follow the law period. They aren't going to go crazy and give vedicts that are illegal.

Posted by: Bryce | September 14, 2005 07:59 PM

Let this be a reminder to anyone who believes our judges, let alone legislatures will follow the Constitution...

It doesn't take much to deprive the rights of anyone. It just takes someone with a belief, someone to type out the details, and ram it through (sounds familiar post 9/11?).

Never trust judges and politicians to maintain your liberty, let alone security. The Katrina disaster isn't the only example of government malice (top, down), it's one in a long history -- just ask any Japanese-American who was interned (the only American citizens to have their constitutional rights REVOKED).

Never become complacent, or it'll be YOU in prison with zero rights, and essentially dead to the world.


Posted by: SandyK | September 14, 2005 10:07 PM

As Craig T. points out we should be thankful for a Constitution. Thanks to the Brits who made it perfectly clear that a "balance" of power is necessary. As I was introduced to American government each branch of government was responsible for the others. It was not set up so one branch just does what it wants with no opposition. The Executive branch needs to be kept in check. As I remember America is a democracy not a monarchy. It seems a shame that people responsible for guiding our government should have so little interest that they do crossword puzzles instead of paying attention to their job at hand.

Posted by: Debbye | September 15, 2005 05:07 PM

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