An interesting series of posts, Billmon. Reading them, I never thought you meant to suggest that liberals, Dems, progressives, the left, should be running out and buying machine guns and violin cases. Or that it would even be possible for “us” to merely copy “them.” I take it that what you meant to suggest here is that we have to find our own way of playing hardball, which includes thinking strategically about when and when not to go to the mat – and that such decisions not be made on the basis of what Repubs and the SCLM keep telling us will make us unpopular with the American public.
While we’ve been talking amongst ourselves, how have the Republicans and their rightwing base spent the day? No surprise and beyond irony, pounding Democrats for an obstructionism of which no Democrat, nor any of the organized groups that represent the Democratic base, have manifested so much as an iota of an iota. MoveOn is the only org. that came out against the nomination, and their opposition was framed in terms of wanting the confirmation process to be a meaningful examination of Roberts actual views of the great constitutional issues that presently appear to divide Americans. From Laurence Tribe to Elliot Minceberg of PFAM to Senator Corzine, to Senator Reid, and even to Senator Schumer, no one has talked about anything other than that same committment to the kind of confirmation process which would make a reality out of the “advise and consent” function of the Senate, which is a guarantee made in the constitution to the American people, we should remember.
If anyone saw the joint news conference on C-Span held by Progress for American and an ad hoc group, something like confirmRoberts will understand what I mean by “pounding;” Ben Ginsberg, Barbara Comstock, and several others, venomous, dismissive of even the most reasonable rhetorical positions staked out by Democrats – like viewing the confirmation process as an opportunity for the American people to have a public discussion of those great constitutional issues – no matter how mild, how reasonable the rhetoric, it was characterized as made in bad faith because all “the left” wants to do is play partisan politics, obstruct Bush, and delay Roberts nomination so he can’t join the Court when in convenes in October. From what they were saying, you could see that it’s going to be Estrada all over again – that the administration will claim executive priviledge rather than turn over any work material from any cases Roberts argued on behalf of Reagan or Bush.
As for Republican Senators, they were mostly busy suggesting that any questions Democrats would want to pose would obviously be asking the Candidate to prejudge potential cases that might come before him. I mean for God’s sake, Roe has been the law for thirty years now; surely we can have a discussion of its basis in the right to privacy, which the Republicans love to argue doesn’t exist in the constitution because the actual word “privacy” doesn’t occur in the constitution.
My two cents – the Republicans are much more vulnerable in the context of such a discussion than they, and perhaps “we” realize. Schiavo should have shown us that. In that context – I found today’s attacks from the right not all that effective. They clearly haven’t learned anything from their Schiavo experience. Life is made easier for them, it’s true, by the media’s propensity to take its cues about framing almost exclusively, these days, from the right.
I don’t think this is one we should go to the mat on; people like Ann Coulter are pissed because they wanted this to be bloody and to provoke a shoot-out on the nuclear option, rightly understanding that once Democrats lost the filibuster, Bush could appoint anyone to fill the coming likely Supreme Court vacancies.
I think a filibuster on Roberts is unlikely. But I’m glad no Democrat has taken it off the table. I also don’t think that anyone on our side came of as pusses today. I think they all struck exactly the right note – an acknowledgement that there is no doubt that Roberts is qualified, but an insistence that when you’re talking about a lifetime appointment to a court of only nine people, something more is required than eminently qualified. And that Americans have a right to hear about where this candidate stands on crucial issues, not cases, but constitutional issues that affect people where they live.
This is first of all a rhetorical battle – confirmation hearings always attract public interest – this is an opportunity for our side to begin to redefine the discussion of how we view the constitution. And if Roberts stonewalls, that could change the politics of this appointment; then, a lot of Dems should vote against him, or, if they get the sense that enough Americans don’t like what they’re hearing about this stonewalling, then they can consider a filibuster.

Posted by: Leah A | Jul 21 2005 10:21 utc | 104

I also don’t think that anyone on our side came of as pusses today. I think they all struck exactly the right note – an acknowledgement that there is no doubt that Roberts is qualified, but an insistence that when you’re talking about a lifetime appointment to a court of only nine people, something more is required than eminently qualified
I don’t know. Calm and reasoned opposition is OK, I guess. But one of these days, just once, I wish the Dems would REALLY fire back with the kind of slime shotgun the Republicans keep falsely accusing them of using. Just take a GOP candidate or nominee and hit ’em with a real down-home style Rovian manure dump. Imagine what kind of the surprise that would cause on the right.

Posted by: Billmon | Jul 21 2005 18:35 utc | 106

i still find it hard to feel the anguish here about something or someone or another someone that has long been decided
the people – & if they have representatives in america, which does not seem to me to be immiediately apparent – they have already lost

Posted by: remembereringgiap | Jul 21 2005 19:08 utc | 108

Thanks, Colman. But I wonder if we have it in us.

Posted by: beq | Jul 21 2005 19:42 utc | 110

Would you like to guess what was defined as a major life activity? Brushing one’s teeth…

Boy, there must be one hell of a halitosis outbreak going on inside the Beltway, especially if you’re standing within the same zip code as Bob Novak. That case alone screams “BORK HIM” over and over to me.

Posted by: Sizemore | Jul 21 2005 21:45 utc | 112

If Billmon’s “we” includes the likes of me–anti-war, anti-likudite, a civil libertian who favors public investment to improve the lives of the poor, along with a progressive income tax, abortion rights, and so on–then “we” won’t win much of anything, no matter what we do. Because there aren’t very many of us lurking in either party.
‘bama, you’re on a roll. took the words right out of my mouth, and far fewer of them and more aptly chosen too.

Posted by: DeAnander | Jul 21 2005 23:46 utc | 114

I’ve adapted the following from my last blog entry:
I like Billmon’s initial screed about Roberts, even though I well-nigh completely disagree with all his conclusions. (Bill’s always a good read.) Reduced to its essence, it advocates Total War on Roberts. And he means Total War — all caveman-Chuck-Colson- Lee-Attwater-Karl-Rove war. Pictures of him alongside Bernie Ebbers and Osama. Rubbing his face in the “infamous french fry case.” It’s a fun fantasy. But what a mistake it would be. To be fair, Bill’s larger point, I think, is that all of these options — including the full armamentarium of dirty tricks — should always be considered, with the only consideration being strategic. That, too is an interesting point for debate, but let’s hold off on that Big Question and focus just on this particular matter. And on this matter, I can see no upside and oh-so-many downsides to an all-out war here.
I hold no brief for Roberts, to be sure (see my first Roberts post at The Ginger Man), but he is a less-unreasonable, less-in-your-face choice than expected. As such, the nomination is no doubt an index of how wounded Shrubbie is politically right now — all of the women under consideration (other than the maguffin, Clement, who apparently wasn’t really being seriously considered but was only on the list to serve as a head feint and smokescreen) are nasty pieces of work (Jones, Owens, Brown). As I’ve previously mentioned, the fact that he’s very smart and very talented might make him more dangerous than one of those Looney Tunes, but for the same reasons, it’s hard — indeed, I think, impossible — to say he’s not qualified.
And let’s tick off just a couple of the costs of the proposed war. First of all, a war will consume an awful lot of money that is needed to fight Rehnquist’s replacement, and believe it or not there is a limited quantity of George Soros’s money to be spent. Second, it would cost us dear in the precious currency of credibility. (And like it or not, we need it. The right seem to get by fine without it. Life sucks but that’s the way of the world right now.) Going to the mat on Roberts would play right into the prefabricated talking point that the librulz are going to put a Fatwa on anyone Bush nominates, doesn’t matter who. And, c’mon folks. He’s very conservative. Anyone able to keep a straight face while pretending to be surprised that Bush didn’t appoint a “moderate” like O’Connor? (And don’t get me started on Sandy. She’s not really moderate so much as incoherent. And her presence on the Court has contributed mightily to incoherent constitutional doctrine.)
Much more intriguing is Billmon’s later suggestion (prompted by, of all things, reading an Ann Coulter screechfest) that we should instead consider using som jujitsu by showering him with praise. Now that’s some deep-game thinkin’. I like it. As bill suggests, that should send the wingers into a frenzy. It mighr also have some effect on the nominee himself; you never know.
But lets get back to Mr. Justice WhiteMan for a moment. There are definitely serious-ass concerns.
If we can strive to think about something other than abortion for a moment, I think Roberts is a serious threat to all manner of beneficial federal regulation. Hell, it appears that while in law school, he was dreaming up ways to resurrect the Lochner-era notion that the constitutional provision prohibiting laws “impairing the obligations of contracts” elevates freedom of contract to a sacral realm that cannot be touched by social and economic regulation.
I am very troubled by his dissent in Rancho Viejo v. Norton, in which he argued in a that Congress was without power under the Commerce Clause to apply the Endangered Species Act to matters such as a property developer’s rare-toad-killing development activities because there was no evidence that — I shit you not — the particular toad or toads in question ever hopped across state lines. I find the fact that Roberts took up his pen here particularly significant because of the posture of the case. A three-judge panel of the D.C. Circuit (a court that handles a hugely disproportionate amount of regulatory litigation, and which is hardly stocked full of wooly-headed Bolsheviks) had already concluded, in a very able opinion I might add, that the Endangered Species Act in fact applied to Rancho Viejo’s bulldozing of rare toads and that such application was not outside Congress’s Commerce Clause authority. (For the unitiated, the power “[t]o regulate Commerce . . . among the several states” — the Commerce Clause — is the most potent source of legislative authority in the Constitution. Without it we wouldn’t have, among other things, the Civil Rights Act of 1964, the National Labor Relations Act, the fair Labor Standards Act, you get the idea. Lose the Commerce Clause authority and we lose a LOT.) Roberts’s dissent was addressed to the court’s failure to take the case en banc (that is, before the full complement of D.C. Circuit judges) in order to overrule the panel decision and overrrule some settled precedents as well. As noted, this court is hardly brimful with hairy-chinned Marxists, and only one other judge (Sentelle, don’t get me started on him) thought the same way. Thus, that decision is significant for two reasons beyond the fact that it’s just plain scary on the merits (and a little nutty to boot, although his position finds solace in some of the Supremes’ recent — but significantly, pre-medical-marijuana — Commerce Clause cases): First, it shows clearly what kind of stuff lights Roberts’s fire — regulatory legislation that gets in the way of bulldozers (well, really, any economic activity). Second, and in a related vein, it gives us a window into where he might want to go in terms of blazing new legal trails (and, perforce, bulldozing precedents) as a Supreme. And it don’t look good.
In addition, Roberts joined the opinion of another D.C. Circuit Brownshirt to hold in Hamdan v. Rumsfeld that (1) the Administration’s Kangaroo ‘Military Tribunals’ were properly authorized by Congress’s pussilanimous 9/11 terrorism resolution and two other (rather obscure) federal laws; and (2) Hamdan could not enforce the Geneva Convention’s provisions in court. Also bad news.
These are my Big Two red flags. That said, I must confess to finding it impossible even to feign being exercised over Roberts’ ‘french fry’ ruling. For those unfamiliar, the DC Metro authorities, in their infinite wisdom, decided that the chief problem confronting commuters on the subway system of the nation’s capital is not bomb-wielding zealots but rather fast food consumption by minors. Accordingly, they adopted a zero-tolerance policy for any violation of a D.C. law forbidding passengers from sipping their coffee or stuffing their faces with heavily salted foods. A young girl was arrested and detained pursuant to the policy and tried to make a federal case out of it, alleging that the stupid, hamfisted antics violated the Constitution. Roberts wrote the opinion (for a unanimous panel) affirming the trial court’s dismissal of the case.
Why no outrage?
Well, first, the decision seems pretty unimpeachably correct. She claimed an equal-protection violation based on the theory that she was singled out for extra nasty treatment because of age (older spud-eaters were not arrested), but that claim involves the absolute lowest-level scrutiny of the government’s action, which virtually always requiring that the challenged action be upheld. She also claimed a Fourth Amendment violation, which is dead in the water in light of the Supreme Court’s decision upholding the arrest and detention of a woman for failing to wear her seatbelt in Atwater v. City of Lago Vista. Shitty decision, for sure. But you have to blame Souter (who wrote the opinion) as well as Rehnquist, Scalia, Thomas, and Kennedy (who joined) for that one.
Second, I have to admit that Roberts writes a damn good opinion, and in this one he took pains to be kind to the plaintiff. Here’s the first paragraph:

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later — all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

Hell, when I lose a case, that’s how I like to lose it. By the way, the hapless motorist in Atwater had a shitty time of it too, but you see nary a kind word in Souter’s very businesslike opinion. Here’s her ordeal:

In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater’s complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and “yell[ed]” something to the effect of “[w]e’ve met before” and “[y]ou’re going to jail.” He then called for backup and asked to see Atwater’s driver’s license and insurance documentation, which state law required her to carry. When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had “heard that story two hundred times.” Atwater asked to take her “frightened, upset, and crying” children to a friend’s house nearby, but Turek told her, “[y]ou’re not going anywhere.” As it turned out, Atwater’s friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater’s “mug shot” and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.

While Roberts has been accused of writing a hard-hearted decision, check out what Souter (a justice I otherwise admire greatly) says after recounting Atwater’s travails. Does he make so much as a nod to the fact that the treatment is hugely disproportionate or “foolish”? No, he starts with a history lesson: “We begin with the state of pre-founding English common law and find that [based on some 20 pages of really unenlightening historical meandering, the common law was just fine with warrantless arrests on the spot].” I’m just sayin’.

Posted by: Sebastian Dangerfield | Jul 22 2005 16:21 utc | 116