The John Roberts Aftermath

Senate Democrats don't have the votes to filibuster the confirmation of the Chief Justice-designate. How do we know this? Because Minority Leader "Dirty Harry" Reid has publicly promised not to mount a filibuster. If there was any possibility of scraping together forty-one "nay" votes, there's no way on God's green Earth that Reid would holster that weapon.

Didn't stop him from throwing empty calories to his crazoid base:

Senate Democratic leader Harry Reid announced his opposition to Chief Justice-nominee John Roberts on Tuesday, voicing doubts about Roberts' commitment to civil rights and accusing the Bush Administration of stonewalling requests for documents that might shed light on his views. ...

"I have reluctantly concluded that this nominee has not satisfied the high burden that would justify my voting for his confirmation based on the current record," the Nevada Democrat said on the Senate floor.

If George Bush could somehow reincarnate John Marshall or Oliver Wendell Holmes and appoint either or both to the SCOTUS, Reid would say something very similar. The reason why is transparently obvious and has nothing to do with document requests or twenty-year old memos: Dems look upon the Judiciary as a partisan policymaking body little different in substance, if not form, from Congress. They believe judges should make law (i.e. attain left-wing ends) that Democrats cannot get enacted legislatively. That is why they treat confirmation hearings like a partisan interrogation gauntlet, that is why they want to know the views of judicial nominees, and that is why they reflexively oppose judges like John Roberts, whose "vision" of the Judiciary is synonymous with that of the nation's founders (who were, of course, all male, European, white devil slaveholders....).

This opposition to JR fizzling with a whimper reflects, in Robert "This is BS!" Novak's opinion, the failure of the Schumer gambit:

Schumer may be the Senate Judiciary Committee's best lawyer, but Roberts is an even a better one. "If this were a fight, the referee would have stopped it," Republican Senator Lindsey Graham told me in assessing the Schumer vs. Roberts confrontation. Beyond their legal duel, the outcome should set a new standard for Supreme Court confirmations. It is unlikely any future nominee can be drawn into an inquest of their policy positions.

That is precisely the new standard that Chucky has been trying to establish for the past four years:

A relatively junior senator just beginning his second term, Schumer has been out front seeking to determine who will serve on the Supreme Court. Four years ago, he propounded an issues test and has not deviated in assessing nominees for lower federal courts....

Schumer...reflected years of planning as he told Roberts "the American people...need to understand that your first-class education and your advantaged life will not blind you to live the plight of those who need help." More specifically, Schumer wanted Roberts to pledge support from the bench for "the environment, Americans' health and workers' civil rights."

Both Biden and Schumer would have turned judicial nominees into political candidates, who would then gain overwhelming support for confirmation by endorsing a liberal laundry list.

Judge Roberts did a very curious thing for a Republican SCOTUS nominee: he gently, politely, skillfully, and firmly refused to cooperate:

Roberts responded to Biden that judges "decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed."

Roberts has won the argument. Law writer Stuart Taylor Jr., in an August 1 Legal Times article, indicated he had changed his mind and now felt that if Democrats "ever succeed in forcing nominees to detail their views, it will not only corrupt the integrity and independence of new justices. It will also, perhaps, open the way for [Democrat] presidents to pack the court with people who have virtually pledged their votes on a long list of issues."

Just thought I'd clarify Mr. Taylor's epiphany.

I think Novak is a bit optimistic (how's that for a role-reversal?). Senators like Chucky, Slow Joe, and the Massachusetts Manatee won't stop demanding that Bush judges campaign for their seats on the federal bench. And not every nominee is going to be as intelligent, telegenic, supremely skilled in the verbal combat of the courtroom, and in possession of as meager a paper trail of professional writings and judicial opinions as John Roberts was. It is those factors (and his taking William Rehnquist's seat instead of Sandra Day O'Connor's) that have made a Dem filibuster a non-starter. Make the next nominee a Michael Luttig, Michael McConnell, Edith Jones, Emilio Garza, William Pryor, Priscilla Owen, Janice Rogers Brown, etc. and the Donks will have a lot more "ammo" to work with, meaning they won't need to extract "campaign promises" and making a filibuster all but guaranteed.

According to Novak, this is what 'Pubbies are anticipating:

Republican Senate strategists believe Attorney General Alberto Gonzales is the only possible Bush nominee to replace O'Connor who would not face a filibuster.

The reason why is, again, transparently obvious: the heat Reid and his people are taking from their grassroots supporters for not obstructing Judge Roberts to the very mouth of hell. Those are the only jackasses with any energy in that party, and that means moolah. No moolah, no energy equals losing the turnout battle against the GOP's already well-oiled GOTV machine, and that means further erosion of their already frail numerical strength on Capitol Hill - and their ability to keep blocking the entire Bush agenda, most especially, judicial appointments.

Since all of the above makes it abundantly clear that Democrats will obstruct pretty much anybody the President chooses, that should greatly simplify his task, since he will have absolutely nothing to lose by following up Judge Roberts with another outstanding constitutionalist. Indeed, since the objective will be to hold Republicans together in order to break the inevitable Dem filibuster, it will be all the more important for Bush to choose a borderline over-qualified conservative jurist. And as we've seen over the past couple of months, there's no shortage of such quality gavel-wielders.

The GOP has actually managed to regain some of the cred it lost in last May's "memo of understanding" debacle. If they can hold it together for another month or two, the Democrats may yet undergo their political Waterloo.

UPDATE 9/21: Wow, I don't know how I missed this portion of Dirty Harry's floor speech from yesterday:

"The President is not entitled to very much deference in staffing the third branch of government, the judiciary."

The founding fathers disagreed, actually, which is why the Constitution gives primary responsibility for "staffing the third branch of government" to the president.

Of course, we know that Reid only means that in one direction. Let a Democrat win the White House again and Republicans object to her first SCOTUS choice and this man will be warning of an imminent coup d' tat against the expressed will of the people at the ballot box who elected "his" president to make just such judicial staffing decisions to safeguard fundamental civil rights, women's rights, privacy, religious liberty, reproductive rights, environmental protections, etc. It's all so transparently, and tiresomely, phony.

The sad part is Republicans would never try to obstruct as the Democrats have. I guess we need to concentrate on recruiting more "extremist" senate candidates.

While the Massachusetts senatorial duo was joining Reid in opposition, look who came out in favor of John Roberts' confirmation (via B4B):

The senior Democrat on the Judiciary Committee announced Wednesday he will vote to confirm John Roberts for chief justice of the United States after leading lawmakers met with President Bush to discuss candidates for the other high court vacancy.

The announcement by veteran Senator Patrick Leahy came amid virtually unprecedented executive-legislative branch jockeying over not one, but two high court openings, seats left vacant by the death of Chief Justice William H. Rehnquist and the retirement of Associate Justice Sandra Day O'Connor....

Leahy said he still has some concerns about Roberts. "But in my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no," he said. "Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda."

I don't know that this is an endorsement so much as a rare, candid public acknowledgement of the inevitable. Roberts is going to be confirmed with or without Leahy's approval, so he's maneuvering to get "pole position" for the next round which is soon to begin.

Needless to say, it didn't make Ralph Neas happy, but "activists" like him can afford to spend their time tilting at windmills and indulging in trumphalist fantasies of forcing George Bush to appoint Lawrence Tribe or Alan Dershowitz or Janet Reno. Heck, it's what they do for a living anyway. Elected Dems in semi-responsible positions like "Leaky" have to at least plug in to reality once in a while, and in this case that meant that Judge Roberts' confirmation - a conservative-for-conservative wash - was a fait accompli, while the O'Connor replacement raises the likely scenario of the Left actually losing ground on the High Court. Leahy might have sought to use his "yea" vote on Roberts as a bargaining chip to moderate the President's next SCOTUS choice.

That's not to say that the effort will be successful. The brain-dead obstructionism of Leahy's fellow jackasses make it, as I discussed above, a no-brainer for Bush to go for the jugular with another constitutionalist since the other side will reflexively oppose whomever he sends up.

But there is a caveat to be mentioned. The consensus on Roberts was that he is another Rehnquist, which suggests that he was appointed in the wake of the O'Connor retirement with the Chief Justice slot in mind. Since that was a "stability" pick, and since Leahy made his public announcment supporting Roberts after having met with the President today, might that not suggest a quid pro quo in which Bush will end up picking a squish like, say, Edith Brown Clement to keep the O'Connor seat where it currently resides?

I'm not predicting it. And reports indicate that, just as with the Roberts pick, the President is keeping his own counsel despite once again indulging in senatorial "consultation." But with Dirty Harry practically promising a filibuster showdown, it could be that Leahy is filling the role of the "good cop" in this equation.

If GDub follows the urging of Majority Leader Bill "Doofus" Frist and announces his choice within the next ten days, we'll find out if he's cracked or stood tall - and which direction the remainder of his presidency takes from here.