Thursday, October 27, 2005

Prepare to Fight

With the announcement by Harriet Miers that she is no longer a candidate for the Supreme Court, it seems likely that there will be a bitter partisan fight in the Senate.

I say that, because it is clear from all of the conservatives I have listened to on air both in the days leading up to today, and today, that they will insist on a strict 'constructionist' judge. And rather than face another embarrassing defeat at the hands of his own party, it seems likely that the President will bow to their demands and name one.

And therein lies the conundrum. According to the memorandum signed by the 'gang of fourteen,' the Democrats retained the right to filibuster in extraordinary circumstances. Miers did not come across as bad enough to provoke a filibuster. Neither did John Roberts. So it is clear that Democrats are willing to accept a reasonable nominee from the Bush administration.

But that is not what the right wing wants. They remember the power trip they had a few months ago when it looked like they could actually change the way the government is run, sweep away the rights of the minority in the Senate so that it would be run just as the House is, with only the majority being able to do anything, and create a situation as close to one party rule as has ever existed in America. Never mind that fact that the Founding Fathers deliberately set up the Senate to be the deliberative body and NOT be the same as the House. And they are so obsessed with the idea that they are doing it in a way that in the end will almost certainly take them down with America.

First, consider for a moment how conservatives might come to rue the day if they do in fact pass a successful 'nuclear option' (hint: in 2008, Republicans have to defend 2/3 of the Senate seats up for election, and a Democratic swing that year would almost certainly set the stage for Democrats to use the very same rules changes that Republicans are so set on imposing, directly to the frustration of conservatives-- and if a Democrat were also elected President in 2008, (s)he could then appoint the most liberal, activist judges in the world and Republicans would then have power to do absolutely nothing about it); Even if Republicans don't lose both the White House and the Senate in 2008, anyone who thinks it will never happen is foolish. But 2008 is certainly a likely year that it could happen, just looking at the numbers.

Second, Americans are already pretty upset with all of the partisan divisions. And if the conservatives force President Bush to nominate a strict constructionist, it will be hard for them to then shift the blame for the inevitable partisan battle to the Democrats, who will be able to respond back that they did not oppose either Roberts or Miers. Had Democrats blocked both of them, or even one of them, things might be different, but since they did not (and Roberts got fully half the Democrats in the Senate to vote for him), the 'powder is dry' for a filibuster in which Republicans would still shoulder the lion's share of the blame.

Third, it is not certain that a vote on the 'nuclear option' to change the rules on filibusters would even succeed. For it to, Republicans have to get fifty votes (with Dick Cheney certainly breaking the tie). Now, before the filibuster vote that didn't happen a few months ago, there were three Republicans who had publically committed to vote with the Democrats (dropping the GOP to 52 votes). But heading into an election year, with the stakes much higher (and a face on them, namely a Supreme Court nominee), and with the whole matter having been forced by Republicans when they stopped Miers, it is very likely that three or more of the remaining Republicans could be pursuaded to defect. Granted, that might not happen either. But, it might, so essentially what the far right has done is forced a situation where the President and they may have to engage in a game of 'chicken' and hope they win. But if they lose, then the President will have been totally neutered for the remainder of his term (probably the reason he DIDN'T want a fight when he nominated Miers).

In any case, I am sure that this won't be pretty. But another piece of good news is that the delay has caused Justice O'Connor to stick around where she will still be the swing vote on a lot of issues.


dorsano said...

Yea - I'm beginning to think that this is not going to be good for anyone.

I can't see a good way out of this short of divine intervention and I'm not even sure what she would do if she did intervene.

And I'm not sure it's even the "social conservative" interests that have some GOP presidential wanabes posturing,

I think they're looking for another champion of "Strict Constructivism" to return case law to what it looked like prior to the New Deal.

In which case they are really bonkers because that will ultimately create a new century of Democratic majorities to rival FDR's and the last century.

NYC said...

Hi Eli,
thanks for the good blog entry!

Yep, I think you're right.
I have a bad feeling that it's going to be "oh, so you didn't like the first one", then they'll nominate the neo-conservative equivalent to Dracula, in hopes of scaring the heck out of everyone and getting the fight they wanted.

If a real struggle breaks out between the parties, and the nominee makes it in anyhow, the administration will probably do all they can to make it appear as a glorious victory for conservatism.