Donks' Real Assault on Roberts Yet to Come

Robert Novak's report on the return of Teddy Kennedy's "gunslinger," James Flug, fits in perfectly with what I have expected to be the ultimate direction of the John Roberts confirmation war all along:

An alert this week from backers of Judge John Roberts cautions not to take seriously Democratic complaints that they cannot stop his confirmation. A three-page memo sent to thousands of conservatives across the country warns that the assault on President Bush's first Supreme Court nominee is yet to come. A major reason cited for this belief is the man back at Senator Edward M. Kennedy's side on the Senate Judiciary Committee: James Flug.

"It is hard to fathom Mr. Flug coming back to Capitol Hill after 30 years of private practice for anything other than a bitterly tough confirmation fight," says the memo, signed by three prominent Roberts backers. That argument is based on Flug's 38-year intermittent history as Teddy Kennedy's gunslinger. Not contained in the memo is Flug's clandestine activity since his return investigating at least one Bush judicial nominee, Appellate Judge William Pryor.

The Kennedy-Flug partnership blocking confirmation of Republican judges dates back to the defeat of President Richard Nixon's Supreme Court nominees G. Harrold Carswell and Clement F. Haynsworth. As Kennedy's rhetoric intensifies, the atmosphere leading up to next month's Roberts hearings feels like the eve of battle.

This sounds like the Clarence Thomas template. Which is interesting, given that in yesterday's Wall Street Journal, Manuel Miranda argues that the better parallel is the SCOTUS nomination of Robert Bork - with one key difference:

John Roberts's nomination looked at first more like the Thomas fight than the Bork one, with liberal complaints of a limited paper trail, efforts to invade his family's privacy, and a dishonest attack by feminists. But 75,000 pages of documents later, liberals have as much to attack Judge Roberts on as they did Judge Bork. Targets of opportunity are more pithy and witty, but no less a treasure trove of issues. Documents recording Mr. Roberts's policy-shaping opinions over 12 years of executive branch service have revealed his views on as far-ranging a set of history-shaping interventions as the Senate has ever before scrutinized for any Supreme Court nominee.

It turns out that behind the mild-mannered judicial Clark Kent who appeared with President Bush last July is a conservative Superman. Some supporters find his lack of scarring over the years reason for suspicion, as well as his minor roles in some liberal causes. But Robert Bork received much more serious Republican fire.

Yet even though the Bork fight shows us the direction in which the Roberts fight may go, Judge Roberts's confirmation is all but inevitable, barring some scandal - and for only one reason: Democrats do not control the Senate. That is a lesson that Democrats will trumpet in a few weeks, and that Republicans should as well. Republicans also should be careful not to think that Judge Roberts's confirmation is due to anything else but that. The Democrats will fail to block Judge Roberts not because he's a "moderate" or a "stealth nominee," but simply because they don't have the votes. [emphasis added]

Mr. Miranda is wrong, of course. It is the GOP that doesn't have the votes, because they'll need sixty to attain cloture, and the "memo of understanding" makes it a crap shoot whether they'll be able to break the more or less guaranteed filibuster of Judge Roberts.

The reason for that may well be Mr. Flug. He's the "barring some scandal" highlighted above. I don't know if he'll be able to come up with any new dirt on JR, but then the dirt can just as easily be planted or fabricated and still have the same effect: spooking the McCain Seven into voting against activating the Constitutional option, or helping defeat the Roberts nomination outright. Remember that Anita Hill was initially a reluctant witness, and the sexual harassment charges she brought against now-Justice Thomas were all debunked, and her accomplices all discredited. But that didn't prevent the Dems and their Extreme Media propagandists from playing up the "pubic hair on a Coke can" slime for all it was worth.

Yes, Justice Thomas was confirmed, 52-48, with I believe eleven Democrat votes joining 41 Republicans. But the Senate Dem caucus had a lot more genuine moderates back then than it does now; and of the seven Dems in the "Gang of Fourteen," only Ben Nelson, Evan Bayh, and Joe Lieberman remotely fit that label, and Bayh is following his 2008 presidential ambitions moveon.org-ward already. That would leave Bill Frist three votes short of cutting off debate, and if the "Flugging" was as ferocious as the lynching of Clarance Thomas was - and there's no reason to think it wouldn't be - one can easily see McCain, Warner, Graham, and DeWine fleeing for the tall grass (there's no doubt about the perfidy of Snowe, Collins, and Chafee) on changing the confirmation cloture rule.

"Sailor" and his South Carolina poodle keep assuring otherwise, so I'm not backing off my initial prediction of Judge Roberts' ultimate confirmation. But the return of Uncle Teddy's hatchetman pretty much ensures that it's going to be a death match - maybe not for the current nominee, but for the President in the determination of his next SCOTUS selection.

Don't, in other words, be surprised if Chief Justice Rehnquist is succeeded by....another David Souter. It may be, as it were, a Dem offer that Dubya can't refuse.