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Thursday, August 11, 2005

From the Enemy`s Own Mouth

I was listening to Sean Hannity`s radio program this afternoon, and he was speaking with Susan Estrich about the nomination of John Roberts to the Supreme Court. (Hannity has been cautiously enthusiastic, and has been defending this guy from the beginning since he sees no reason to oppose him.) Estrich`s comments were very disturbing; she warned conservatives that they will be very disappointed in Roberts.

Estrich pointed out that Roberts has been in Washington for decades working as a government lawyer (government lawyers tend to be liberal, or ``moderate`` as she put it), has made few enemies, and she claims he is known as a member of the Gerald Ford wing of the Republican Party. Given the current makeup of the Court, Estrich warns that Roberts will naturally gravitate to the ``moderates`` (Souter, Kennedy, Bryer, etc.) since he really doesn`t have anything in common with the conservatives. If Rehnquist were younger he could take Roberts under his wing and guide him in a more conservative direction, she argues, but with Rehnquist being very ill and probably about to retire, he will have very little influence over a Justice Roberts.

Hannity tried to accuse Estrich of attempting to split conservatives from Roberts, and I wouldn`t put such a trick past her, but she verbally shrugged and laughed this accusation off. I don`t think she was trying to game anyone. She stated that Roberts will be easily confirmed, and that none of the Senate Democrats will seriously attempt to fillibuster, because they all know he is not bad from their perspective, and that the real battle will come when Bush nominates a true conservative.

Let`s see, where have we heard that? Oh, I remember, we read that in my July 20 post ``The Art of War``! I argued that:


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.)



Susan Estrich is confirming my argument! SHE thinks that Roberts should not be so well liked if he were truly a conservative, and SHE thinks that the Democrats won`t waste bullets on a skirmish but will save them for a real shooting war. This isn`t the war, folks! The war will come when Rehnquist is gone, and the President gets to nominate a new Justice and a new Chief Justice. If this happens in `08 we are dead; President Clinton will be the one doing the nominating, or President ``freedom of speech`` McCain! Do we really want to wait for this to happen?

I hope and pray that I am wrong on this, and that Roberts turns out to be a fine, strongly conservative Justice. (I usually hate being wrong, but I`ll make an exception in this case!) I hope and pray that I`m wrong, but I don`t think that I am. We have heard it out of the enemy`s own mouth!

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3 Comments:

Blogger Mattias A. Caro said...

Yeah, I heard this too yesterday on Hannity. Her comments had all the makings of a conspiracy theory. Losely based on facts and minute details and quite difficult to refute but just simply not standing up to the muster of reasonableness.

Bush is the WYSIWYG president. He makes no attempt to hide moderates in more conservative clothing or conservatives in moderate clothing. If he says Roberts is his guy and esposes the judicial philosophy he wants, then I believe him.

The Democrats have a huge problem. What is Roberts? Is he the moderate which might iritate the right? Or is he a crazy right-winger who is absolutely unacceptible to the nation? They're peddling both stories, and at the end of the day, I think the Gang of 14 crowd is going to help push the vote above the 70 threshhold.

As for the next one, I agree Rehnquist is waiting. I still believe Scalia will be elevated to chief justice and we'll see something unexpected: as soon as he is nominated his fellow justices will come out in support of the move and nullify ideological critiques of him. Why? Scalia is probably the most well-liked member of the court. He's equally good friends with Thomas and Rehnquiest as well as Stevens and Ginsburg (indeed I once saw Scalia bring the jewish Ginsburg to a New Years Eve Catholic Mass...midnight on December 31...that's friendship right there...)

6:07 AM  
Blogger Timothy Birdnow said...

Thanks for weighing in, Mattias!

I agree; Estrich was weak on specifics. It may well be she has heard the concerns voiced by a number of conservatives (such as Ann Coulter) and is trying to manipulate that. I don`t know; the problem I have is that I don`t see many specifics to prove the guy is a conservative, either.

I also agree that President Bush will not manipulate the way Clinton did. However, Bush prizes loyalty and does not operate on a ideological basis, and my concern is that ROBERTS may be the wolf in sheeps clothing. (Certainly Souter and Kennedy were examples of that!)

It`s true that the Democrats have a huge problem with this nomination because they have no easy way to demogogue it, but I still think it was a mistake because Bush should have saved this for a more opportune time. We need to have this battle now, not in 2 or 3 years. The Republicans can win this thing if they choose to fight, but may not if they wait a couple of years. I wanted to see the fillibuster used; it would have been the LAST time the Democrats used it! Their obstructionism would be doomed, one way or the other. The public has grown tired of this nonsense, and the Republicans were in a position to strike a decisive blow. They may not be, come the next Congress.

If we ever had a chance to get a true conservative on the bench, it was now. Roberts, even if he is strongly conservative, is still too mild and self-effacing, and I don`t see this guy being another Scalia. Bush blew this opportunity.

I hope you`re right about Scalia becoming Chief Justice, and about the whole court coming to his defense. One thing I know is that politics and friendship mix as well as oil and water, and many Republicans and Democrats are good friends while ripping each-others guts out. (Consider Mary Matalyn and James Carville!) Let`s face it; there is political machinations on the Court as surely as anywhere else.

Mattias, you may be 100% correct, and I truly hope you are! I have just had misgivings about this nomination from the beginning. I was watching PBS and Mark Shields refered to Roberts as ``very confirmable`` which gave me great pause. I have yet to see any evidence which convinces me. Our success with ``stealth candidates`` has been very poor.

7:51 AM  
Anonymous GM Roper said...

Tim, I think that the reason Ostrich - - whoops - - Estrich was "weak on details" is because they are terrified that if they put up a fuss now, the Republicans will invoke the nuclear option. They are waiting to demonize whoever Bush nominates for Chief Justice... I guess they are waiting till the 06 election results to see if they are "nuc proof."

9:01 PM  

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