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Location: St. Louis, Missouri, United States

Wednesday, July 20, 2005

The Art of War

(This post may appear later in the week in the American Thinker. Editor Thomas Lifson wants to find a pro to pair with my con, so he didn`t want to post this up right away. I`ll keep everyone up-to-date.)

``One who knows when he can fight, and when he cannot fight, will be victorious``
Sun Tzu, The Art of War

Sun Tzu was an ancient, semi-mythical Chinese military tactician who wrote the definitive text on military strategy. His profound understanding of the martial arts so influenced the Orient that his writings were not permitted in unauthorized hands, lest they abet sedition. Sun Tzu taught, among other things, the importance of controlling the times and places of battles. Unfortunately, President Bush has neglected to read Sun Tzu, and his nomination of John Roberts for the Supreme Court may cost conservatives the war.

Today it seems every mouth is filled with praise for President Bush`s selection of John Roberts Jr. to fill Sandra Day O`Connor`s patent leather pumps on the Supreme Court, and everyone is admiring the political acumen displayed by the President in choosing someone with such a thin judicial resume` that he will be virtually untouchable politically. Who can argue with that? He is said to be conservative, althought he is not that objectionable to the liberals. He is the perfect candidate to avoid a hard, bitter confirmation battle with Harry Reid, Ted Kennedy, Durbin the Turban, Chucky Schumer, Huffing Hillary, and all of those other rampaging Tripods wreaking destruction in the Senate. (I`ve been going to too many movies lately!) He is a man of character and intelligence...

So, why be glum about this nomination? The reasons are twofold; It`s not a good idea putting a man in a lifelong position of imperial power without knowing EXACTLY what he is going to do once there, and it may be that our invertebrate friends in Washington have badly miscalculated the strategic importance of this nomination. I think the time has come for a showdown over judicial nominations, and I believe that the President has put off for tomorrow what he should have done today. I suspect we will all pay dearly for that.

To my first point regarding the coronation of a doctrinally unclear Justice, I merely need point to Sandra Day O`Connor, Anthony Kennedy, and David Souter. These Three Kings of Disorient are usually unable to find the map, much less locate where on said map they reside. We never can be sure which way these Justices will rule on any given case, and we have been treated to a treasure-trove of personal views and myopic thinking masquerading as Judicial Opinion. Bear in mind that these three Justices were supposed to be conservatives (or at least, not liberal), and they were appointed by Republican Presidents. Also, considering the fact that Earl Warren and Warren Burger were both Republican appointees who changed radically once they sat their derriere`s upon the judicial thrones; it should be obvious that anybody being seriously considered for the godhead should have a solid record on which to base their elevation to the holy of holies.

Which is precisely what we don`t have in the case of Judge Roberts; he has only been on the bench for a few short years, and does not have a sizable body of writing to analyze. According to John Tabin writing in The American Spectator Online:

On abortion, the issue that drives these debates (thanks again, Justice Blackmun), Roberts's record is not entirely clear. In 1990 he authored a brief for the first Bush administration that called for the overturning of Roe v. Wade, but that he presented his client's position tells us very little about whether he shares it (only that he wasn't so at odds with the administration that he would resign over it). He told the Judiciary Committee in 2003 that "Roe v. Wade is the settled law of the land....There is nothing in my personal views that would keep me from upholding it." Thus he respects "vertical" stare decisis on abortion -- the principle that lower courts must follow Supreme Court precedent. But that tells us nothing about his views on "horizontal" stare decisis, the idea that the Court should avoid overturning its own precedents.

In other words, we simply can`t tell which way Judge Roberts will go on abortion-or any other issue before the Court. We simply do not have a large enough body of writings from Roberts to be certain of his views; we are taking him on faith. The Republicans have a miserable success record with faith-based judicial nominees.

Even if my lack of confidence is totally unjustified, and John Roberts turns out to be a blend of Antonin Scalia and Ronald Reagan, I still find the President`s lilly-livered approach to this nomination quite disturbing. We have a war coming over judicial nominations, and the longer we wait to fight this battle the harder it will be to win. President Bush is determined to continue his ``duck and cover`` strategy (or, as he calls it, his ``New Tone``) which is merely a remodeling of the Newt Gingrich tenement shack which cost the Republicans seats in the 1998 off-year elections. The Democrat Tripods demolished that particular Hooverville when Newt tried it, and although they have had less success against Bush, they will eventually figure out some sort of message to campaign on and then the ``new tone`` will be trampled under foot as surely as New York in the recent Spielberg film. Bush`s ``new tone`` hides tone-deafness.

President Bush needs to understand when he should and should not fight. Since the election of 2000 the Democrats have fought tooth-and-nail to prevent him from appointing any judges, and Mr. Bush has sought to avoid a destructive showdown with his foes in the Senate. When the Senate Republicans were considering the ``nuclear option``, the change in Senate filibuster rules which would allow a simple majority to invoke cloture (rather than the 60 votes currently required) President Bush discouraged this maneuver. Everyone has known for some time that several Supreme Court seats would be coming vacant, and the Democrats have been preparing for war. Now the moment everyone has been waiting for has arrived, and the President has dodged the issue, appointing someone who will be easier to confirm.

Ronald Brownstein, writing in the L.A. Times, makes the case that this nomination will be a fight, but not a war. Brownstein states:

But in Roberts, a judge since 2003 on the powerful U.S. Court of Appeals for the District of Columbia Circuit, Bush also chose a nominee unlikely to inspire either the most enthusiasm among hard-core conservatives or the most intense opposition from Democrats and liberal groups.

In effect, Roberts may represent an effort to thread the needle in filling the court vacancy. The selection could offer Bush an opportunity to maximize his chance of a relatively smooth confirmation while minimizing the danger of either conservative disaffection or scorched-earth Democratic opposition.

It seems clear that the President is doing everything in his power to avoid a long and bitter confirmation battle. But is that a good idea at this point?

Why hasn`t Chief Justice Rehnquist retired? Probably because he is afraid that the Republicans will appoint another Souter, and his life`s work will melt away because of their cowardice. I suspect he has been waiting to see what happens with Sandra Day O`Connor`s seat. If it looks safe for him to leave, he will.

There is the rub. If Roberts confirmation hearing fails to erupt into a war, the Democrats will be in a decent position to attack Bush`s next nominee with all vigor; the war will have been postponed from 2005 to `06 or even `07, and the President may not be able to win at that point. The Democrats will be able to fire all of their guns, and they will be able to defend this action by claiming to have given Roberts a pass. Time is not on the President`s side. When Rehnquist retires (or passes away) the President will have a vacancy on the Court, as well as the nomination of a new Chief Justice. The stakes will be much higher. Will he be able to persuade his party to implement the ``nuclear option`` immediately before the midterm elections, or before the Presidential elections? Will a very lame-duck President be able to force his picks through before his term expires? The time to fight is now, not two years from now. President Bush has pushed this battle off into the future, and he can ill-afford it.

As Sun Tzu pointed out,``One who knows when he can fight, and when he cannot fight, will be victorious``. We needed to fight this judicial battle now to be victorious. If the tripods throw everything they have at Roberts, reneging on their deal with Senate Republicans and filibustering, Mssrs. Frist and Delay will be able to launch the nukes at them. If the Democrats wisely pursue a ``bloody nose`` strategy (make some fuss but then confirm) they will be in a position to stop the more critical appointments which the President will make later. Republicans needed to draw a line in the sand, and that should have been accomplished by the President selecting a verifiable, strong conservative. (The words ``confirmable`` should give us all great trepidation.)

Now, a scorpion stings because it is a scorpion, and the Democrats may not be able to control their bloodlust enough to recognize the mistake the President has made. Still, I hate to rely on their continual ineptitude for our success. We need to be smarter in our strategy, as well as willing to roll up our collective sleeves for some bare-knuckle politics.

I wish Mr. Bush would read his Sun Tzu.



Blogger Aussiegirl said...

This is superb, Tim -- and I'm unfortunately inclined to agree with you 100%. You have even added some things I hadn't considered, like the fact that the time is now and that Bush is only postponing the knock down drag out fight until later when he may be in an even weaker position. What galls me is that the democrats are not in power, but they are still in charge -- in that -- the Republicans feel forced to name these stealth candidates about whom nothing is known just to ensure that they get confirmed without a bloodbath. That virtually ensures that we will have no first-class conservatives on the court. Furthermore, I also have a gut feeling about this. As wonderful as this guy sounds, and I'm willing to give him the benefit of the doubt (because that's all we have to go on), I'm suspicious of someone who has lived for 50 years and never been moved by his conscience or his intellect to utter one controversial or unpopular or strong opinion on anything. Bland milquetoast arguing whichever side he's hired by -- no matter how brilliant the legal mind -- is maybe not a person with a strong enough judicial and personal philosophy to render sound judgements from the courts. One thing's for sure. The democrats have imbued the Supreme Court and the courts in general with such power as their last best hope of instituting their agenda, having lost everywhere at the ballot box, that they now squeal and scream bloody murder should a conservative get nominated. In a way -- they are in danger of being hoist by their own petard (which is a bomb, you know -- I always think of those round black bombs with fuses that the terrorists in Mad Magazine used to cart around -- LOL!)

I'm glad Thomas Lifson thinks he is an excellent choice, I hope he knows more about him than we do.
Thanks for the link -- I will link up your article. I really should read Sun Tzu -- great analogy and you've also used some wonderful phrases in this piece. Great writing.

8:29 PM  
Anonymous Anonymous said...

Just passing thru doing a Technorati search. has a con article about Roberts that contains some information I haven't seen elsewhere regarding cases Roberts handled and who he worked for. Check it out.

2:21 AM  

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