Democrats need to be real. John Roberts is anti-Roe. Nonetheless, he will be our next Supreme Court Justice. If the Dems define a "win" in the confirmation process as blocking Roberts, we're going to hand GW a victory and lose again.
Instead, the Dem Senators need to recognize that the Roberts confirmation hearings is one of those rare occasions, like Presidential debates, when the public's attention is focused on politics, and Party defining messages can be successfully delivered. If they keep that in mind, and adopt a detailed strategy for delivering a focused message on certain key issues, the Dems can achieve a MAJOR victory in the Roberts confirmation.
And John Roberts is going to help us do it.
Here's how: [More on the flip]
[WARNING! This diary is NOT for soundbite lovers or casual thinkers. This diary is just the first part of a DETAILED strategy for taking advantage of the Roberts' confirmation hearings to advance the Democrats message, and agenda. If you don't like detail, stop reading now.]
THE KEY IS DON'T FIGHT THE WRONG BATTLES
I personally don't believe that Roberts has any chance of becoming a David Souter. He is anti-Roe and the anti-abortion Federalist Society members I know (including major Janice Brown boosters) are very happy with his selection. But, he is a brilliant lawyer and a very persuasive advocate who is getting praise from liberal legal lions like David Boies and Laurence Tribe.
More importantly he's shown a mastery of surving a confirmation hearing. Roberts' 2003 confirmation hearings for the D.C. Circuit can be found here:
http://www.access.gpo.gov/congress/senate/pdf/108hrg/92548.pdf
http://a257.g.akamaitech.net/7/257/2422/09oct20031230/www.access.gpo.gov/congress/senate/pdf/108hrg/
89324.pdf
If you read his confirmation testimony two facts become readily apparent: (1) Roberts is an excellent witness who got the better of the Democratic Senators in the verbal jousting in his 2003 confirmation, and (2) Roberts isn't going to say anything controversial about himself, and certainly isn't going to say he'll rule in a controversial fashion in future cases.
In fact, it's fair to say that Roberts is going to answer only the most innocuous questions. As is readily apparent from the interchanges between Roberts and Sen. Schumer in the 2003 hearings, Roberts is a master of invoking the "Ginsberg Precedent."
For those not in the know, the "Ginsburg Precedent" is a rather clever argument made by Ruth Bader Ginsburg in her Supreme Court confirmation hearing as to why she should not be required to answer, and would not answer, any questions that might concern a case or controversy that could come before the Court, including questions asking if she agreed or disagreed with past Supreme Court precedent.
Ginsburg's argument has been seized upon by the Federalist Society for use by Republican nominees. A copy of the Federalist Society's white paper entitled "Precedent form the Confirmation Hearings of Ruth Bader Ginsburg For the Conduct of Judicial Nominees" by Jay Jorgenson of the Sidley Austin firm can be found here:
http://www.fed-soc.org/Publications/rbgjudnomconduct.pdf
Roberts has appeared before the Supreme Court nearly 40 times and is one of the finest appellate attorneys of his generation. He proved in his 2003 confirmation hearing that he will have no trouble explaining why he will not answer case specific questions utilizing the "Ginsburg Precedent." In short, he may have to stonewall a lot, but he isn't going to answer, and the media is likely to accept the spin points on the "Ginsburg Precedent."
The right fight is not about getting Roberts to answer the question: "Will you overturn Roe?" The right fight is NOT about Roberts' answers.
It is worth noting that a liberal spin floating around that Ginsburg did answer a question about abortion and Roe is not convincing. Ginsburg answered the question because she had given a public speech on the topic and was expounding on what she said in that speech. Roberts has no similar history of public pronouncements or speeches. And, Ginsburg did NOT comment on many specific cases on which she hadn't made speeches.
Bottom Line: Roberts can defend himself, he isn't going to answer questions in a way that will hurt his confirmation chances and thus he will get confirmed. And if you doubt my opinion on this one, then give careful consideration to two facts: (1) Sen. Reid in his infinite wisdom has directed the Dem Senators to not attack Roberts, and (2) the gang of 14 have all but annointed Roberts.
It is also worth remembering that GW hired Fred Thompson (I play a lawyer on t.v.) to manage the selection and confirmation process. Former Sen. Thompson, in turn, assembled a crack team of conservative lawyers from some of the most prestigious firms to assist him the effort. Their mandate was to pick the acceptable nominee (read: anti-Roe) who was most likely to breeze through the confirmation process. Roberts was their number one pick long before his selection was announced. And for obvious reason: the guy shined in his 2003 confirmation hearing.
The right fight is NOT about Roberts confirmation. That's a foregone conclusion. So what is the right fight?
THE RIGHT FIGHT IS A PROPAGANDA BATTLE
While Roberts' appointment is a blow, it is not the end game. The end game is regaining control of the Executive and Legislative Branches.
The Republicans have successfully been able to disguise the radical nature of their view of the Judiciary by misdirecting the public with several seemingly common-sense memes: "Judges shouldn't legislate. "We don't need Judicial activists," "The Constitution should be strictly interepreted," "The Constitution never says there is a right to __ (gay sex/abortion/etc.)," we can all go on and on. These phrases resonate maily because the public has not been shown how hollow these phrases really are.
This is largely because the Democratic response to these meme has been to publicly ignore them. Sure there are scholarly articles critiqueing "strict construction" and advocating "structuralism," but that doesn't resonate with the public consciousness. And even that attack leaves the Repubs free to use their memes. We need to attack the Republican memes, demonstrating why they are nothing but a disguise for an attack on liberty.
Roberts' confirmation hearings gives us that chance.
THE STRATEGY
In a nutshell, I believe the Dems strategy should be as follows:
(1) Publicly, until the start of the hearings, take the rhetorical tact that "Democrats are fairminded and will not prejudge Roberts" [something I'm glad to see is already happening];
(2) During the hearings, forego the usual pontificating speeches and shotgun questioning (which, if past history is any guide, usually comes across as nothing more than a laundry list of questions correlating to a luandry list of Dem issues and interest groups) and instead pursue an extremely structured "trial-like" examination of the nominee, aimed at making a case for the Democratic vision of the Constitution and the Judiciary, that will proceed through five distinct topics, hopefully with a different Democratic Senator (or more than one) on each topic (discussed in detail below and in subsequent diaries); and
(3) A unified concluding spin, utilizing the time of the last Dem Senator to examine Roberts, a post-hearing press conference, and coordinated messaging.
Now talk is cheap. And, admittedly, this strategy looks a little vague. You are probably asking yourself what are the five topics this bozo thinks the Dems should focus on? Answer: The myth of strict interpretation, right to privacy, abortion (a distinct topic from Privacy), limits on government's police power (indefinite detention, etc.), extent of Congresss power to regulate (ESA, etc.), and Freedom of Religion [in that order.]
[Note: I do not think we attack the man. We don't engage in the politics of personal destruction. We don't "Thomas" him.]
And now you're asking, thanks for the list bozo, but how is that focused? And what does a trial like examination look like? And how would questions on the above topics in such a format nail the Repubs? Answer: Let's proceed to Topic no. 1.
EXAMINATION OUTLINE: STRICT CONSTRUCTION
Rule no. 1 for a trial: Never ask a question if you don't know the answer. Fortunately, we know what Roberts will say to almost every question. Where I indicate answers, I am taking text or projected answers from Roberts' prior confirmation testimony (which can be read at him, to nail him and attack his credibility or insinuate perjury, if he deviates from that prior testimony).
The reason we start with strict construction, as opposed to Privacy or some other more specific topic, is because strict construction is the foundation for ALL Republican memes on the Constitution. You undermine that, and the Repub spin points start to fall apart. The chatter on the talk shows is then well off the Republican script.
Again, Roberts helps us here.
Q. Some judges claim to follow one or the other of various judicial philosophies. Conservatives often claim to be "strict constructionists," "textualists" or "originalists." Do you subscribe to any one judicial philosophy for determining all cases?
A. Well, Senator, I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, ``I'm an originalist, I'm a textualist, I'm a literalist or this or that.'' I just don't feel comfortable with any of those particular labels. In my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. I don't feel that I bring a coherent, universal approach that applies across the board to all the provisions of the Constitution.
Q. Why isn't it the best approach to have only one "all encompassing philosophy" like strict construction?
A. I certainly don't feel comfortable with any uniform or consistent approach because the constitutional provisions are very different. You have a very different approach in saying how are you going to give content to the Fourth Amendment prohibition on unreasonable searches and seizures. That's one thing. It doesn't mean that you apply the same approach to a far more specific provision like the Seventh Amendment.
Q. In other words, in your view, different judicial philosophies may need to be applied to different Constitutional provisions. Does the existing Supreme Court precedent follow any single judicial philosophy like "strict construction"?
A. No. The Supreme Court doesn't apply a uniform and consistent approach. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't.
Q. Would you agree with me that, really, none of the Justices presently sitting on the Supreme Court consistently and uniformly apply a single judicial philosophy like "strict construction" or "originalism" to every Constitutional provision?
A. Yes. I think certainly the case that all nine of them would tell you--and I think it's true to a large extent--they begin with the case. They don't begin with the philosophy. And in some cases, looking at the case drives them to a particular result, and you can look, easily see decisions where you think this is not an originalist approach, and yet a Justice might describe himself in that particular way.
Q. I assume from your testimony that you don't feel, as some argue, that no one is deserving of nomination to the Supreme Court unless they subscribe to a single uniform judicial philosophy like "strict construction" or "originalism"?
A. Absolutely not. [laughter]
Q. You should straighten out the Republican Party. They keep saying only Judges who subscribe to a uniform "strict constructionist" or "originalist" approach should be on the Court. [laughter.]
Q. You would agree with me that in the past we saw Justices, like Justice Black for example, who adopted a "strict construction" of the First Amendment which held that "No law means no law." Yet today, not a single Justice, including Justices Scalia and Thomas, follow what the general public might think is the clear wording of the First Amendment of the Constitution: "No law means no law."
A. Yes. That is correct. ...
Q. You'd agree that things like the "clear and present danger test," the "commercial speech doctrine," and many other established Supreme Court doctrines relating to the First Amendment aren't found in the literal wording of the Amendment but instead are judicial creations.
A. Yes. ...
Q. Is it judicial misconduct, or outrageous behavior, for the Justices to adopt interpretations of the Constitution, or tests, like the Commercial Speech doctrine or the "clear and present danger test" that appear at odds with the Constitution's "literal" wording?
A. No. The language of the Constitution only takes you so far. In some cases you need to look beyond the language of the Constitution and consider other factors.
Q. Is it judicial activism?
A. No. My definition of judicial activism is
when the Court moves beyond the role of deciding a concrete case or controversy and begins to either legislate or execute the laws rather than decide the case and say what the law is.
Q. The term "judicial activism" gets tossed out a lot when people talk about Supreme Court cases. Would you agree that perhaps it is bandied about too much? For example, would you disagree with those who screamed "judicial activism!" when the Supreme Court in Brown v. Board of Education struck down the Jim Crow laws which led to the segregation of our country?
A. I don't see that there's anything about Brown, obviously, a momentous decision with dramatic impact on society, that was judicial activism. What the Court was doing in that case was deciding and telling what the law was, that the Equal Protection Clause properly interpreted does not mean you can have separate but equal, because that is inherently unequal.
Q. I'm glad that you've been honest about these false accusations of "judicial activism" made by some on the right. Turning back to your earlier comment on judicial philosophy. You previously stated that looking at the case drives a Justice to a particular result. Is there anything wrong with this type of case by case reasoning?
A. No. ...
Q. But you would agree with me that it can be damaging to the Court when the Justices engage in outcome oriented reasoning for partisan political purposes?
A. Absolutely. ...
Q. The Supreme Court is not a partisan office, is it?
A. Absolutely not.
Q. What "judicial philosophy" would you have used to decide Bush v. Gore?
A. With respect, Senator, you're asking me to criticize particular Supreme Court precedents. When Justice Ginsburg appeared before this Senate she thought that was inappropriate because it would be harmful to the Supreme Court. I think it's inappropriate because it would be harmful to the independence and integrity of the Federal judiciary. I think it is key to the independence and strength of the Federal judiciary that judges come to the cases before them, unencumbered by prior commitments, beyond the commitment to apply the rule of law and the oath that they take. I think that is essential. And if you get into the business where hints, forecasts are being required of a nominee because you need to know what he thinks about this case or that case, that will be very harmful to the judiciary.
Q. Justice Ginsburg is an extremely intelligent woman and if you are appointed to the Supreme Court you will do well if you continue to follow her precedents. [Laughter.] But your answer just isn't good enough. The reason I ask about Bush v. Gore, aside from the fact that it was a very important case which determined who became our President, is because in that decision Justice Ginsburg filed a separate dissent that argued that the majority's reasoning trampled on the principle of Federalism, a principle which the 5 Republican Justices in the majority opinion have often given lip service. But, in Bush v. Gore, that principle was found by them to be of insufficient weight. As you put it, "the case drove those justicies to a particular result."
Now, Bush v. Gore is considered by many legal commentators to be one of the worst decisions in Supreme Court history. But, it is notable that Bush v. Gore was NOT decided on party lines, instead the dissent consisted of two Republicans and two Democrats, whereas the majority was five Republicans. I've wracked my brain trying to determine why those five Republicans voted so wrongly. And about all I've been able to come up with is their history of Republican Party activism and political activity as compared to the two Republicans who voted the right way in the dissent.
Before becoming a Justice, Justice Rehnquist was a Republican party official who campaigned for Goldwater and was a member of the Nixon Administration, Justice O'Connor was a Republican party official and legislator, Justice Thomas was a member of the Reagan and Bush Administrations, Justice Scalia was a member of the Nixon and Ford Administrations, and Justice Kennedy was a Republican lobbyist and paid consultant to Reagan. In other words the five Justices in the majority in Bush v. Gore all owed their careers to the Republican party.
In contrast, neither Justice Stevens nor Justice Souter were particularly active in Republican politics. They were Republicans, but they didn't owe their lives to the Party and didn't have a history partisan politics.
You on the other hand do.
So, to bring an end to this long-winded question, given that you tell me that the "case can dictate the result" and the fact that you have a long history of being active in Republican politics, going so far as to volunteer to help Jeb Bush find a way to keep Florida's electoral votes for President Bush in 2000 even if a recount should have shown that the majority of Florida citizens voted for Vice-President Gore, I think it is very reasonable to ask what "judicial philosophy" you would have used in that case. Your refusal to answer is deeply disappointing. Thank you for your time.
FINAL THOUGHTS (for now? see poll)
This is obviously a VERY ABBREVIATED example of the questions and answers that could be used. But, I hope that you get the message. There is a real world script that can be used to try to make the point, using Roberts, that a lot of the Republican memes on things like "strict construction" are just B.S.
The spin and media commentary that result after a hearing like the one I describe above is completely different than the spin and media commentary that results from a shot-gun questioning approach. Assuming that this hearing is going to go several days, we'll be able to have several different days of messaging. And starting out with the messaging that "this guy doesn't believe in strict construction, doesn't think any of the Republican Justices do, and instead thinks that for him and the other Republican Justices the case can dictate the results, boy what a refreshingly honest thing for him to say" sets the stage for harsher questioning to come.
I toss out Bush v. Gore just because it provides an example of how you can artfully score at the end of the day with a non-answer.
There are many tactics and strategies that can be used. But, it requires serious thought and preparation, and, most importantly, the willingness of the Dem Senators to sublimate their ego (and their contributors wishes) to implement a unified strategy.
I could go on. And I will if there's any interest. Or, perhaps others will take the time to start developing some REALISTIC questioning strategies that get across the messages we want to get across.
On the Right to Privacy, a devastating case can be made based on a series of questions to which Roberts will provide no answer. Anyone interested?