The JPS Factor

Cap'n Ed raises an interesting rationale for why Senate Democrats may end up not filibustering President Bush's next SCOTUS nominee to replace the retiring Sandra Day O'Connor:

John Paul Stevens.

O'Connor may have sometimes provided a swing vote, but overall the best Democrats can say about O'Connor is that she didn't turn out to be as conservative as they feared in 1981. She mostly represents the GOP's home turf. They will make a hue and cry about maintaining her moderation on the court, but they cannot afford to lose the filibuster over O'Connor.

John Paul Stevens, on the other hand, is 85 years old and not getting any younger at all. Stevens provides one of the most reliable of the liberal votes on the Court these days, and they have to have all the weapons available in case he retires or passes away. He remains in good health at the moment, but the chances of him staying that way for another three years aren't high enough for the Democrats to throw away the leverage they need to protect his seat if it comes up for replacement during a Bush term, regardless of the reason.

Mr. Morrissey makes a compelling case. With John Roberts' nomination, the Left lost no Olympian ground since he was replacing another constitutionalist in the late William Rehnquist. And even should a Michael Luttig or Edith Jones or Emilio Garza take Justice O'Connor's seat, they'll only be losing half a vote. (The Roe balance would still be 5-4 in favor.) And maybe not even that, since Justice Kennedy has pretty much sold out to the left side of the High Court as it is and, with O'Connor gone, would probably make it official. Whereas if they spend their filibuster on round 2, they risk becoming defenseless against losing a full vote should Justice Stevens become incapacitated or pass away. Suddenly Roe would be forfeit to a quintet of Roberts, Scalia, Thomas, Luttig/Jones/Garza/et al, and the judge behind door #3. Will they take that chance?

But what we have to remember, and what the Cap'n isn't, is that calculating rationalism and sober strategic thinking have very little to do with how Senate Donks approach the confirmation process. They are the captives of their own crazed crypto-Marxist supporters, who are fit to be tied that all forty-four of their elected Senators and their lone "independent" appendage didn't seize Judge Roberts, bind, blindfold, and gag him, put him up against a wall, and shoot him. Those lunatics were positive that the new Chief Justice would be filibustered (heck, so was I) and President Bush forced to put up Janet Reno in his place. They don't think about hypotheticals eighteen months from now. They live entirely in the moment. And anybody who thinks that they will stand for another Bush choice getting through without pitched street battles is zonked out on happy pills. If that happens, the moveon.orgers and Kos-hacks and Moore-ons will be binding, blindfolding, gagging, and lining up Harry Reid and every minority member of the Judiciary Committee right along with him. And Reid & Co. damn well know it.

Another thing to consider is that after the post-Katrina kerfuffle, they think they've got Republicans on the run. Dems are convinced that Bush is so weakened that he won't dare appoint a "right-winger" to replace Justice O'Connor, and if he does majority 'Pubbies are so terrified of being seen as helping the "unpopular" White House (or crossing the "reasonable, mainstream" Donks) on anything that the McCain Mutineers will never let Bill Frist invoke the Byrd Option.

Much as I hate to say it, there's probably considerable truth to that perception. Probably not that comprehensive - I'd be (mildly) surprised if the President goes with a known constitutionalist, less so a closet one - but given that the Seven Dwarves pulled their backstabbing "Memo of Understanding" stunt four months ago in political conditions far more favorable to their party than the current ones, whether a filibuster could be broken has to be seen as a question mark.

Lastly, the logic of the confirmation equation doesn't auger for continuing to hold the filibuster option in reserve. There are simpy too many unknowns. Suppose Reid doesn't deploy it, Michael Luttig replaces O'Connor, and there are no more vacancies during Bush's second term? Or there is another vacancy (replacing Justice Stevens), but in the interim the Dems lose more seats in the '06 midterms, enough to make a filibuster far more difficult to mount? Or Stevens leaves, the Dems break even or even gain a seat or two next year, but the political conditions at the time make the triggering of the Byrd Option a more likely filibuster consequence?

At the end of the day, even if Dirty Harry were to suffer a sudden fit of sanity and raise his skinny, Barney Fifesque carcass sufficiently to snip the extremist puppet strings that manipulate his caucus, it's the odds of the confirmation filibuster being banned by the Republicans that has to be the overriding, determining factor in whether or not the Democrats go for "nuclear" obstruction. And, frankly, I don't think he'll find more favorable conditions for a filibuster showdown than right here, right now.

Of course, if the congressional GOP continues on its present suicidal course, the Democrats may regain majority control on both sides of the Hill, and the whole question will become moot.

One can only hope that Republicans at both ends of Pennsylvania Avenue recognize that appointing and confirming another constitutionalist to Olympus is the best way that they can redeem the Judicial Branch - and themselves as well.