Is a Very Dangerous Storm Gathering for the Dems?
I should be ashamed of writing the first part of this post, because it involves the very easy task of deconstructing Joe Biden's behavior yesterday towards John Roberts. But the second part is a bit more interesting, so hang with me.
Biden, breaking out his best guy-smiley game show host grin, directed almost all of his questions to Roberts about the "Ginsburg Rule" (how he would answer questions during the hearing) as opposed to Roberts' judicial philosophy. Read the whole thing (part 1, part 2) to see how two-faced Joe Biden really is. It got really cute when Biden accused Roberts of "filibustering", adding that it's only a bad thing when they do it to him (Roberts). A hint as to what's in the air in the Democrats' cloakroom, perhaps? Perhaps not. Biden is a dope whose questioning had a net zero affect.
A filibuster would likely be unsustainable, which leads me to believe that Harry Reid will counsel against it rather than have egg on his face, and risk losing the power by a rule change which Republicans have promised. And in any case, if they are smart, they will see the real battle coming with O'Connor's replacement. And while Dick Durbin and his likewise clueless followers have suggested that they won't vote to confirm Roberts until they know who is coming to fill the O'Connor seat, such is just empty talk. There is nearly nothing Roberts could say or Bush could do to make the likes of Biden, Leahy, Schumer, Kennedy, Durbin, and others vote to confirm him anyway.
So who does Bush put up for O'Connor's seat?
I've previously suggested that Janice Rogers Brown or maybe even Miguel Estrada would make great selections. They would be for-sure confirmation fights, but ones that would be very embarrassing for the overly zealous leftist Senate Democrats who reserve the worst of their rancor for minority conservatives. Mistreating a qualified self-made conservative black woman or qualified self-made conservative Hispanic man after comparatively cordial treatment of a like-minded white man like Roberts would begin to strip the already fading veneer off of the Democrats' truly cruel and cynical attitude towards minorities who disagree with them. But it's very hard to say if that is the battle Bush wants to fight.
But perhaps Bush may prefer another more shrewd angle to make the lives of the Dems even worse. Edith Clement or maybe even Michael Luttig could be appointed. The Senate would be faced with yet another qualified young attractive conservative originalist judge, whom the Dems would have similarly difficult issues filibustering given a record of responsibility, a professional demeanor through the confirmation process, and a careful playing of one's cards close to his/her vest a la Roberts, notwithstanding the moronic behavior and wasted oxygen of the Democrat stooges on the Judiciary Committee.
But the Democrats' base would see it much differently.
Because while Bush and conservatives understand the gravity of appointing the right judges to the Supreme Court and Circuit Courts of Appeals (look at the Ninth "Circus" Court of Appeals to see what happens when one doesn't treat appointments seriously), the left is deadly serious about it. Because the left's legislative agenda is not described in terms of bills passed by legislatures and signed by executives, but by case names.
Roe v. Wade did not happen because abortion on demand was the will of the people, nor is it the job of a court to be concerned with their will--that's for the legislatures. It was the will of just five people. At that time, the various state legislatures were making their minds up on the matter (some legalizing others not), per the 10th Amendment. The Supreme Court usurped that power. Similarly, Lawrence v. Texas in 2003 said that sodomy could not be criminalized by the states (after Bowers v. Hardwick in 1986 said it could). The left's "legislative agenda" is not legislative at all. It is in reality a judicial agenda because they know as well as anyone else that the state legislatures would never dream of enacting any of their proposals because they are so far out of the American political mainstream. But if unelected and unaccountable--but politically reliable--judges on the federal level can restate the law in an appellate opinion, it becomes the law of the entire land, altogether bypassing Congress and state legislatures. Hence Roe, Doe, Lawrence, Roper, and Kelo.
But without liberal activist judges and left-leaning appellate courts, the left has to live with the laws made by lawmaking bodies consisting of elected and accountable representatives of the American people who are responsive to their concerns, and thus fearful of offending them. And to them, that's not progress, but rather (and very possibly) an environment for a regression of their agenda.
And if Bush is able to appoint two judges whom the left abhors, but the Senate Dems let them go in a walk, the left will see it as a craven betrayal. The net effect will be Democrat voters staying home, certain checks being written for less than expected, and others not being drawn at all.
This presents significant problems for Democrat Senators in red states like Kent Conrad (D-ND), Ben Nelson (D-NE) and Bill Nelson (D-FL) who are up for reelection in 2006, and who may not want to upset voters who heretofore have looked the other way when it comes to their Senators' party affiliation, by playing Harry Reid's game on national TV, playing into Bush's plan for a repeat of November 2002.
One hopes it turns out this way, and that Bush actually does play his cards this shrewdly.