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Jewish World Review July 26, 2005 /19 Tammuz, 5765 Roberts' foes unwise to bet the bank By Peter A. Brown
http://www.JewishWorldReview.com |
Once those trying to stop John Roberts' Supreme Court nomination finish their initial ranting and raving, they must decide whether to bet their bank or just make a lot of noise.
Smart money says they'll conclude discretion is the better part of valor.
If they go all out and lose, it is much less likely they can successfully derail President Bush's future nominees, and he will probably have at least one chance to pick additional Supreme Court justices.
On the other hand, there is no guarantee that if they hold back their venom and husband their resources to fight another day, that they will like Bush's next choice any better, or have any greater chance of preventing confirmation.
Make no mistake about it: Roberts was high on the list of candidates Democrats and their allied interest group feared. He is much too conservative for their taste and lacks a record of judicial intemperance or an outrageous paper trail of past writings that make him easy to caricature as an extremist.
Since he was unanimously approved for his appeals court seat by the Senate two years ago, opponents will have to argue that he has done something in the interim to change their minds.
Roberts fits Bush's model of a judge who does not believe courts should create rights or require government spending that Congress has not seen fit to legislate. Moreover, at age 50, he could remain on the bench for 25 or 30 years.
Even if the political worm turns, and the Democrats regain control, they remember what happened to Franklin Roosevelt when a Supreme Court appointed by Republican presidents tossed out many of FDR's pet programs.
Yet, the risks of going all out against Roberts and losing are substantial.
In retrospect, this spring's deal that allowed confirmation of most of Bush's appeals court nominees created key dynamics for this fight.
As part of that agreement, Republicans agreed not to change the rules that allow 41 senators to filibuster a nominee. But, enough Democrats agreed not to filibuster future nominees to make such tactics unsustainable. The caveat was that in the case of nominees considered by the Democrats to be extremists, all bets were off on both sides.
The choice now for Democratic leaders, and their interest-group allies such as People for the American Way and MoveOn.org, then, is whether to go the filibuster route and make the case Roberts is an extremist.
Absent unexpected revelations, Roberts seems almost sure to get virtually all of the 55 Republican senators, which is enough for confirmation.
And some of the more moderate Democrats have indicated they don't initially see Roberts fitting their definition of an extremist.
If the anti-Roberts folks want to go all out, spend the millions they have raised and try to sustain a filibuster, they need most of the seven Democrats who worked out the appeals-court compromise to agree Roberts is extreme enough to break their word.
But, even if all the Democrats were to support a filibuster, then the Republicans just need to get 50 of their own members to change the rules to prevent filibusters of judicial nominees — a controversial step no one on either side of the aisle wants.
At first blush, a Democratic effort to filibuster Roberts seems unlikely to attract enough GOP support to allow a talkathon. Democratic leaders would have to convince all their members plus enough Republicans that Roberts is an extremist, and early indications from some moderates were that would be a tough sell.
With Chief Justice William Rehnquist battling cancer at age 80, the two leading liberals on the court John Paul Stevens, 85, and Ruth Bader Ginsburg, 72, and swing vote Anthony Kennedy, 69, that might be a risk the Teddy Kennedys of this world would not wish to take.
Moreover, if the anti-Roberts folks spend the many millions they have squirreled away for a full-bore effort, then they would have to raise more all over again for any future fights. That's not to even mention the difficulty of trying to convince the American public that they weren't just crying wolf again.
Although the hearings on Roberts' nomination, not to mention any votes, are more than a month away, his opponents face a strategic decision that logic argues should be made quickly: Reject total political warfare.
Of course, that would require the anti-Roberts folk to forsake their parochial motivations of raising additional money (the interest groups) or boosting their candidacies for higher office (most senators).
Ain't politics grand!
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Peter A. Brown is an editorial page columnist for the Orlando Sentinel. Comment by clicking here. © 2005, Knight Ridder/Tribune Information Services |
Mitch Albom | |||||||||||
