Patterico's Pontifications


The Prediction Stands: Dems Will Filibuster Bush’s Second Nominee — And Will Therefore Vote for Roberts

Filed under: Judiciary — Patterico @ 4:30 pm

I have predicted all along that the Democrats would not filibuster President Bush’s first Supreme Court nomination, no matter who it was — but would filibuster the second one . . . no matter who it was.

I still believe that is their plan. In order to execute that plan, they may decide that they need the apparent credibility that comes with a vote for John Roberts — a candidate who is clearly unobjectionable and will be confirmed without breaking a sweat.

The downside for them is that voting for Roberts opens them up to the gambit I mentioned here the other day — it ties their hands to a significant degree in raising objections to a possible Miguel Estrada nomination.

The Democrats’ principal objections to Estrada were: 1) the Bush Administration’s refusal to release Solicitor General memos, and 2) Estrada’s alleged refusal to provide details on his views. But Roberts did not release Solicitor General memos, and Estrada could easily give answers with the same level of detail as Roberts. Given these ready responses to Democrat objections, and the similarity of Estrada’s resume to that of Roberts, any filibuster of Estrada by Democrats runs the risk of looking like an unfair blackballing of Estrada due to his Hispanic heritage.

I think Sen. Schumer, for one, has decided that this is a risk that he is willing to run, for two reasons.

First, Judge Roberts has set a very, very high standard for the next nominee. No matter how well the next nominee performs, he or she will almost inevitably fail to pull off a performance as impressive as that of Judge Roberts. Estrada is a bright man, but hardly any candidate has performed as well as Roberts in recent memory. Democrats can easily use this to justify their vote for Roberts, and say that the new candidate just didn’t impress them as much.

[UPDATE 9-17-05: This is borne out by an article in today’s New York Times, which quotes Schumer as saying: “Roberts set an awfully high bar in terms of intellect and ability to answer questions, which is going to be awfully hard for the next nominee to match . . . Roberts gained a lot of good will because of his intellect.”]

Second, the availability of documents from Roberts’s service in the Reagan Administration gives Democrats an argument (albeit a lame one) that they have more information about his views than they have about Estrada. Schumer alluded to this in remarks from Thursday’s hearings:

In some cases, like Miguel Estrada’s nomination, we had no knowledge of his views so we couldn’t vote. But here there’s clearly some evidence.

That was a warning shot — and it was evidence that Schumer is seriously considering voting for Roberts.

If he does that, he is going to have the interest groups howling with fury. And Schumer, as much as any Senator, is a captive of the abortion lobby and PFAW. The only thing that will assuage these people is a promise to filibuster the next candidate, unless he is to the left of Stephen Reinhardt.

For these reasons, I am going to sign on to Dafydd ab Hugh’s recent prediction: Roberts will get passed on to the floor with the votes of every Democrat except for Teddy Kennedy, who is so apparently upset about Roberts’s Reagan-era memos on the Voting Rights Act that he will never vote for Roberts, even though it would be the strategically smart thing to do.

The other Democrats will hold their noses and vote for Roberts. And they will say next time around: I am not automatically filibustering every Supreme Court candidate! But this nominee [whoever it is] is so out of the mainstream I have no choice!

You heard it here second.

UPDATE: Democrats, listen — even the Washington Post is editorializing in favor of Roberts’s confirmation.

UPDATE x2: I see Biden as the second most likely vote against Roberts.

14 Responses to “The Prediction Stands: Dems Will Filibuster Bush’s Second Nominee — And Will Therefore Vote for Roberts”

  1. The real answer is that President Bush has to appoint someone who will draw enough Republican support to win out in a “nuclear option” scenario. The Democrats don’t want to filibuster someone who will force a winning nuclear option strategy, because that takes the filibuster off the table for judicial nominations permanently.

    And, quite frankly, that means one of the Ediths: to insure Senator Collins and Senator won’t jump ship, we’ve got to have a female nominee. Judge Clements was, supposedly, the runner-up to Judge Roberts for the O’Connor seat nomination. Someone like Michael Luttig might lose out in a nuclear option scenario, even though he ought to be as easily confirmable as Judge Roberts.

    There is, however, some internet gossip about some guy named Frey as the next nominee; I’m not sure how much of a paper trail he has.

    Dana R. Pico (a9eb8b)

  2. Watch for an attempt to pass Roberts by voice vote or unanimous consent.

    Charlie (Colorado) (d794ec)

  3. Am I missing something here? Isn’t there a middle ground? The Democrats on and off the committee could vote against Roberts in large numbers, but not filibuster him. He would be confirmed, they would keep their base happy, and they wouldn’t trigger the nuclear option. They’d look a little foolish voting against someone so unexceptionable, but the ones on the committee already look like a bunch of preening cretins, so they don’t have a lot more respect to lose.

    Dr. Weevil (6c327c)

  4. The problem is that they don’t think that they don’t have a lot more respect to lose. They certainly don’t with me, but with their base?

    It wasn’t that long ago that people were debating whether Senatrix Clinton would vote to confirm Judge Roberts (to strengthen her positioning as a moderate for the 2008 presidential campaign) or vote against him (to secure her base for the nomination).

    The idea that she (or any of the Democrats) might base their votes on whether they actually thought he was a well-qualified nominee doesn’t seem to have occurred to many people.

    Dana R. Pico (a071ac)

  5. Dr. Weevil,

    I think your scenario is the second most likely option.

    Patterico (4e4b70)

  6. I agree that Roberts will be confirmed by more than 70 votes. I don’t think he’ll break 85, though. I think you credit the Senate Democrats with too many deep and middle- and long-term thinkers, Patterico. Somewhere between ten and fifteen of them have electric leads running from their gonads directly to If you turn out to be right, I’ll actually be terrified, because it will mean that the Democratic Party leadership has developed savvy and guts sufficient to make threats and promises sufficient to persuade some substantial number of the wired-up to endure the pain. It will mean they’re smart enough to not only recognize but execute the sort of strategy you’ve suggested. But if there’s someone who’s that smart and that powerful in the ranks of the Senate Democrats, I certainly don’t know who it would be — it’s certainly not the Minority Leader or his Deputy, nor the 2004 nominee. It would take the ghost of LBJ, who I believe is still laughing too hard to break through the aether.

    I did not appreciate just how incredibly good Roberts would turn out to be in these hearings, and I agree entirely that he’s set the bar at a new level for Nominee #2. It’s clear to me in short-hindsight that the Administration had concluded that Roberts was so supernaturally good that the long-term benefits from getting him into the CJ spot were worth the temporary tactical disadvantages suffered by making him Rehnquist’s instead of O’Connor’s replacement. I have to allow for the possibility that there’s another potential nominee out there who I’m similarly misunderestimating at the moment.

    Nominee #2 doesn’t have to be that good. But what Nominee #2 has to be is good enough to keep 50 Republicans on board to pull the nuclear trigger. I’m not sure they ever had 50 during the fights over the Circuit Judges, nor that they have 50 now. I’m hugely pessimistic that they could get 50 willing to pull the nuclear trigger for someone as controversial as Judge Jones or any other nominee perceived as being pre-committed to overrule Roe. They’d lose more than just Snowe and Collins and Specter on the merits of such a nominee, and I’m afraid they’d lose McCain and a half-dozen others who’d back away from the nuke option on anything less than a nominee they were enthusiastic about.

    I’m a big believer, though, in cosmic karma and payback. If Miguel Estrada has indeed given his okay to be renominated, I’d love to see that. And part of the reason I’d love to see that is that I think his nomination would indeed trigger a filibuster, but that the odds of the nuclear option succeeding would be pretty good.

    Once it’s been triggered even once, then and only then can the President base his future calculations on confirmability on a prospective nominee’s own intrinsic confirmability, without also having to factor in the filibuster complications. At that point, but IMHO not before, someone like Edith Jones becomes confirmable, even if it’s to put into Stevens’ or Ginsburg’s seat.

    Beldar (d54a00)

  7. To an extent, what we’re seeing now in Democrats is a result of the failures of their fellow Dems at the polls: as a party they’ve been weakened by losses, and those who survive lean harder on their base.

    I finally came to understand this recently, and to understand that this was why some Republicans were saying that Bush might actually have more trouble with a larger Republican majority in the Senate–the Democrats who lost came from either red states or very middle-of-the-road states, which means the remaining Senators are overwhelmingly blue and thus much more shrill members of the Democratic base.

    There are few moderate dems left in elected office in Washington.

    Honeslty, looked at from this perspective, it is to be expected that Democrats will fight tooth and nail over everything they can. The Bush administration might have been better off if guys like Zell Miller and John Breaux were still there, as opposed to the nobody Republicans who replaced them.

    Dean Esmay (44346c)

  8. I think you’re right that Roberts will sail in, but you’re wrong about Teddy Kennedy. He’ll have some company in his dissent.

    The progressives are restless and in some districts mere acquiescence carries the danger of some significant blowback at the midterms.

    A difficult choice but I liked EJ Dionne’s take on it. The obstructionist argument is flawed. I think the Dems progressive base is more than ready for a little obstruction.

    The Impolitic (391a34)

  9. E.J. Dionne’s take is deceptive.

    Patterico (4e4b70)

  10. I think Schumer is also highly likely to vote against.

    aphrael (6b0647)

  11. Estrada has a big negative: he has no experience as a judge. Not federal, not state, not even local. The Ds can easily claim that to put someone on the Supreme Court without at least a few years’ experience is not acceptable to them. I’m not so sure it’s acceptable to me; were I a senator, I’d seriously consider voting against an Estrada nomination, until he’d racked up at least two years’ judging experience, preferably at the Federal Circuit level. Put him up for Roberts’s seat on the DC circuit, and then in a few years he can go for Stevens’s seat on the Supreme Court. Though by then, Janice Brown will have had that experience too, on top of her many years’ experience judging at the state level. As for the current vacancy, my own choice would be either Kozinsky or McConnell, but politics might dictate Clement.

    Milhouse (dcec4f)

  12. It’s not just the Dems Bush has to worry about…

    … he’s got to worry about the soft Republicans, in particular the 7 in the Gang of 14, who will be looking to oppose Bush’s next nominee in order to burnish their ‘moderate’ credentials….

    ThoughtsOnline (e37e4c)

  13. Predictions: Judiciary-Committee Democrats Fail to Rise Above Lowest Expectations

    Crash and burn on my prediction for the J-Com vote! I wildly overestimated the Democrats’ ability to recognize their own best interest. The vote of course included five Democrats voting against, not just Ted Kennedy: what is astonishing to me…

    Big Lizards (fe7c9d)

  14. Roberts; Miller; DeLay

    I can’t not post on a day that has so much law-related stuff in the news: By far the most consequential news was also the most expected — that we have a new Chief Justice of the United States, the Hon. John G. Roberts, Jr. The 78 confirmation votes …

    BeldarBlog (af7df9)

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