Supreme Court confirmation process: Discipline and punish

Whip_hand_cover_copy1Discipline and punish….The Democrats should have one priority going into the Supreme Court nominations process: party discipline.

The Republicans are trying to convince the public that the president has the right to have his nominees confirmed. That’s absolutely ridiculous. Regardless of what you think about the judicial filibuster, the fact remains that every senator is responsible for evaluating and critiquing the nominees (adivsing) and approving only those she deems worthy (consenting). Consent implies the choice between assent and dissent. You can’t exercise consent when “consent” is your only option.

The Republicans are setting up certain expectations about the upcoming fight. They pretend that a senator is obliged to support the President’s choice unless they can cite an egregious violation of ethics or jurisprudence.

As Bush said on July 18, 2005:

We’ve consulted with the Senate. We will continue to consult with the Senate. I, of course, am the person that picks the nominee, and they get to decide whether or not the nominee gets confirmed. That’s the way it has worked in the past. That’s the way it’s going to work in this administration.

Republicans are trying to encourage the misconception that a nominee’s views are irrelevant. As convenient as that assumption is for the side that picks the nominees, it’s still wrong. The standard line is that what matters is the soundness of the nominee’s legal reasoning, not his substantive conclusions. The logical rejoinder is that nominations are political decisions within a system of checks and balances.

Like most jobs, there number of minimally qualified applicants for the Supreme Court vastly exceed the number of vacancies. Obviously, it would be wrong to nominate or confirm a candidate for political reasons if they were unqualified, but let’s assume we’re dealing with applicants whose qualifications are minimally acceptable. There’s no other position where minimal qualification guarantees you the job. Other considerations always come into play in the final selection process.

Senators are entitled to ask the same questions that the President asks in choosing the nominee in the first place: Where does he stand on the issues I care about? Would his legacy be positive or negative?

Democrats have to shake off Bush’s manufactured sense of entitlement. The first step is to identify John Roberts’ values and qualifications. Are they consistent with the values of the Democratic party? In a word, no.

We all know that Bush chose Roberts because he is a dependable Republican partisan. So, the Democrats shouldn’t be afraid to ask the obvious normative questions. What would Roberts confirmation mean for progressives in America?

Even more importantly: What would Roberts’ confirmation by the narrowest possible margin mean for Bush and future nominees?

Roberts is a compromise candidate. It goes against the Republican core brand idea to admit to compromise, but there you have it. Don’t assume that “compromise” means acceptable, let alone moderate. But do recognize that Bush is feeling the constraints of public opinion.

Some analysts are calling this choice as a savvy political ploy to undercut Democratic opposition. That’s a nice way of describing what might otherwise be called showing weakness. Roberts is not the pick of a president who feels sure of his ground. He’s trying to back away from the fight.

At this point, Democrats should demand strict party line discipline from all our senators. The right demands no less of the Republicans:

Insist that the administration and Senate leadership enforce party discipline. That means letting the squishes like Arlen Specter and John McCain know in no uncertain terms that if they don?t support the president here (including voting for the constitutional option to derail a filibuster), they will get nothing for the next 3 ? years ? including validation of their parking tickets.–David Horowitz

As Ezra points out, Bush will confirm a conservative judge. Barring some shocking revelation about Roberts, I don’t think it would be worthwhile to filibuster him. The next nominee would probably be equally bad. It’s far wiser to stiffen up our own discipline. First, we use the confirmation process to draw attention to critical issues. Second, we send a message to Bush: this far and no further.

A unified Democratic party will send a powerful message. There will probably be at least one more confirmation battle during this administration. If we aren’t strong now, the Republicans will be emboldened to nominate an even more extreme candidate next time.

In the weeks to come, let’s not get bogged down in obscure arguments about whether position A on issue B is indicative of fatal logical defect C within constitutional interpretive theory D. We’re entitled to our litmus tests. If we don’t like a candidate’s views on abortion, let’s say so straight out. Forget trying to argue that anyone who opposes abortion must have made a catastrophic error in legal reasoning about twenty steps back. Even if it’s true, it’s not our burden to discharge.

It’s really very simple. If you’re a Democratic senator, you don’t vote for the John Roberts because he’s not the kind of person you want on the Supreme Court. You use the confirmation process as it was meant to be used, as an opportunity to delve into the qualifications and values of the nominee. The public deserves to know exactly where this potential lifetime appointee stands on the issues. Then you vote. Then, after the smoke clears, you look around to see who else stood by your party. Then you act accordingly.