Wednesday, July 20, 2005

Dear Dems: You had your chance and you pooched it.

It's not like I don't have enough Canuckistan stuff to blog about but I'm mightily peeved with the indescribable stupidity of the Democrats -- quite simply, they got thoroughly snookered by Commander Chimpy's recent SCOTUS nominee. As it stands, given that nominee John Roberts has a stunningly brief career as a judge, there's virtually nothing the Dems can do to reject his nomination. But did it have to come to this? No.

If the Dems had had any brains whatever (something that is looking increasingly unlikely with each passing day), they could have prepared for this. Let me explain.

Naturally, over the last several days, the Dems had to put on an act of being ready to work with Bush; of being open to various nominees; of being willing to give any nominee a fair and impartial hearing. They really didn't have much choice there, did they?

However, if they'd had any spine and were willing to take a stand (yeah, right, this is the Dems we're talking about), they could have tried something like this:

"We're happy to say that we've had helpful and productive discussions with President Bush regarding possible nominees to the Supreme Court, and we want to assure everyone that we're prepared to give any nominee a fair and unbiased hearing. However, we want to make one thing clear.

While we're certainly willing to give the president wide latitude to select his nominee, there is one concession we are not willing to make. We want to make it clear that we will absolutely not accept a nominee that has a public and outspoken opposition to Roe v. Wade, and who has made it clear that he or she would be willing to overturn that decision.

We understand that the president is due great deference in his choice of nominee and, while we appreciate that, this is one issue that is simply a deal-breaker. It is not open to negotiation, and we will reject and, if necessary, filibuster any nominee with an open history of opposition to abortion rights."

Naturally, the wingnut demographic would have gone positively ballistic at such an anouncement, so what would it have accomplished?

First, it would have demonstrated that the Dems were willing to take a real stand, and would have put them clearly in the driver's seat with respect to womens' rights. It would have shown that they were willing to fight for at least one issue. But is that all?

Undoubtedly, the same wingnut demographic would have howled about the Dems having a "litmus test" for the nominee, to which the Dems could have responded a couple of ways.

First, they could have pointed out that Bush has his own litmus test for any nominee -- it's unthinkable that Bush would nominate anyone who wasn't a conservative. Not a compelling comeback, but a comeback, nonetheless.

A more effective comeback, however, might have been, "Damn right it's a litmus test. You can call it whatever you want but those are our conditions. We'll be flexible on everything else, but abortion rights are just not on the table, so deal with it." But what would all this have accomplished? In my opinion, plenty.

This approach would have first allowed the Dems to, within hours, reject Roberts as a nominee. As it is, they're pretty well fucked since they have no solid grounds to deny his nomination. But if they had drawn that line in the sand ahead of time, all they would have had to do was refer to Roberts' prior opinion on Roe v. Wade: "We continue to believe that Roe was wrongly decided and should be overruled." And that would have been the end of the discussion.

The Dems wouldn't have had to dig around, desperately looking for a rationale to keep this lunatic off of the Supreme Court. They could have just pointed at his words and said, "Sorry, no good. We told you what the rules were. Try again."

In addition, if the Dems had put this particular stake in the ground ahead of time, it would have made Bush look petty. The Dems could have come back with, "Several days ago, we made it clear that, while we were willing to work with this administration, there was one issue that simply was not open for negotiation, and that was abortion. We made it clear that we would not accept a nominee with a history of opposition to abortion rights who would like to overturn Roe v. Wade. So it's extremely disappointing that this president saw fit to nominate someone who takes exactly this position."

Rather than being on the desperately defensive, the Dems could have taken the moral high ground and made Bush look like a total dick. Instead, they're pretty well screwed here, simply because they had no clue how to prepare for what they had to know was coming.

How pathetic is that?

COMMENTS ON COMMENTS: While, for the most part, I love my readership dearly, there are times when some of you make life far more complicated than it has to be. Before I reply to a couple of the comments, let me re-emphasize the major point I was making.

In my opinion, at this point, the Dems are pretty well screwed in terms of the Roberts SCOTUS nomination. Most of the news coverage I've seen suggests that, while Dems might give Roberts a good grilling during the confirmation hearings, his confirmation is pretty much a done deal.

On the other hand, if the Dems had taken the time to set some clear conditions beforehand, they would at least have had a fighting chance to reject Roberts. But not having the sense God gave a urinal deodorizer disc, the Dems were simply too stupid to figure out how to protect themselves and they have only themselves to blame. And now, to the comments.

Writes ahistoricality:

Unfortunately, his previous statements on Roe were written in the context of his work, and so it would be entirely possible for the Republicans to ooze their way around that objection, at least publicly, which is what they're doing now.

But this battle is not being fought in the courtroom, it's being fought in the court of public opinion. While this kind of tap-dancing, semantic parsing might fly in a legalistic setting, that's not what matters. There's no way the Dems would even think of trying to derail a SCOTUS nomination unless they felt they had public support behind them. And while the GOP apologists play word games, all the Dems need to do is point at Roberts' prior writings, as I describe above. Which argument do you think would be more convincing to the general public?

(In addition, given that the American public seems to be getting thoroughly annoyed with the semantic shucking and jiving regarding Karl Rove, do you really think they'd put up with even more of it here? I doubt it. I think this is an argument that would have leaned the Dems' way, at least according to the public.)

The jurist writes:

First, as you point out, the Dems didn't have much chance to do anything at all with regard to Roberts or any other nominee. And by taking a hard line like that, they'd have left themselves with absolutely no line of defence against a nominee who's not completely anti-abortion but who's otherwise an even worse Bush hack (Gonzales, anybody?).

Technically possible, but highly unlikely. It's hard to believe that Bush could find a nominee who's a total right-wing nutbar but still respects womens' rights. Possible, but unlikely. But that's not the point.

There's no way the Dems could have immunized themselves against every variation of a right-wing lunatic nominee. But by taking the stand I described above, they could have at least taken a firm stand on one issue. And while they might have taken some flak over it initially, they could have countered that this was a matter of principle and that's that. And, having done that, they could have at least had a prayer of rejecting Roberts or any other vocally anti-Roe nominee.

No, my proposal is not an instant solution. But it would have at least given the Dems something to work with, as opposed to what they have now, which is sweet fuck all.

AFTERTHOUGHT: There's one more point that's worth making. I think the Dems have the right to accuse Bush of reneging on his pledge to pick a "mainstream" nominee.

A recent poll, however, shows that a full 59% of the American public supports Roe v. Wade, which makes someone opposing it, by definition, out of the mainstream.

I would think the Dems might be able to get some mileage out of that. But you already know how smart I think the Dems are.


Robert McClelland said...

Frankly I'm hoping Bush will get some wingnuts appointed to the Supreme Court and that they do make abortion illegal. It will serve to help keep the cons out of power here.

Canadian Perasma said...

Also, let refugee liberal Americans come to Canada. That'll help. But inform them none of that stupidity they played down there. We mean business.

Ahistoricality said...

Unfortunately, his previous statements on Roe were written in the context of his work, and so it would be entirely possible for the Republicans to ooze their way around that objection, at least publicly, which is what they're doing now.

Let's face it: except for his private practice, in which he served mostly conservative clients, but basically took on anyone who needed a good Supreme Court showing, he's been a Republican house lawyer his entire career. That's enough to prove that Bush didn't look very long, very hard, and that, as smart and nice as this guy is, it's highly unlikely that he's the best person for the job.

But the Bush administration runs like Attilla the Hun: "Reward mediocre but loyal Huns; do not tolerate brilliant but disloyal Huns"....

The Jurist said...

A few points here...

First, as you point out, the Dems didn't have much chance to do anything at all with regard to Roberts or any other nominee. And by taking a hard line like that, they'd have left themselves with absolutely no line of defence against a nominee who's not completely anti-abortion but who's otherwise an even worse Bush hack (Gonzales, anybody?).

Second, trite though it seems, the nomination could have been worse. Nothing on Roberts' record that I've seen indicates that we can be sure that he'll go too far on any particular decisions (I wouldn't tend to blame him for the positions he's been asked to take in court, though the confirmation hearings will be the time to ask questions to find out more). It's not likely, but he could end up being a moderate con, and he'll quite probably be more reasonable than a Luttig or a Jones.

Third, the Dems' position on a Supreme Court appointment this far out isn't going to have any effect on the next election. In fact, the only way the Court is likely to have any real effect is if Roberts swings enough votes (particularly on Roe v. Wade if it's revisited) to simultaneously bring out the Dem base and swing moderate voters back to the Dems to avoid similar nominees in the future.

And finally, I can't blame the Dems for keeping their focus on Rove rather than turning their attention to a court nominee who's done much less to hurt the U.S. so far. With the White House spin machine focusing on the court, someone has to make sure that the sleaze coming out of Bushco is part of the news cycle - that's where the Dems need to be applying what spine they have.

CathiefromCanada said...

CC, I agree, though they should phrase it "right to privacy" -- which apparently is the way Roe v Wade was decided anyway, but also can be expanded to cover situations like the Schiavo case. The dems have to start promoting "frames" for their beliefs, rather than just single issues.

Ahistoricality said...

Mr. Cynic,

Of course it's being fought in the court of public opinion, but in any "balanced" venue (or in Republican advertising) the Republican talking head can and does use the dodge as I've described it. In fact, in Republican advertising, they can use Democratic attacks on his work product as a token of the unreasonableness of Democratic opposition. Only in Democratic-only discourse can those briefs be considered anything like a slam-dunk case, or even really good propoganda materials.

Yes, they should ask him about them at the hearings, but until they have an answer on them, they're no more useful than his Harvard transcripts....