Okay, so I've read all the diaries and heard all the chatter, and while I'm not a lawyer, I have a good understanding of Con. Law and what I consider to be reasonable insight into the make-up of the Court, and label me underwhelmed by the case made so far as to why opposing Roberts was this mandate we had to follow and why it's such a terrible thing that the caucus has been released.
And yes, this is a challenge for you to try and convince me, because I think I really want to be convinced. I worry about Roberts. I fret and suspect that Roberts is worse than he sounds.
And yet.....And yet...
So, let me tell you where I stand, and if you can convince me, I promise I will call all of my friends at the Senate working for Undecided or Nay votes/ leaedership committees and repeat what you have said. Whether they listen or not is their own deal, but I'll do my part.
Here are my main sticking points to joining team filibuster or death:
- Roberts is no longer filling O'Connor's seat. He is filling Rehnquist's. This matters to me. And the argument that you don't change the criteria based on the seat their filling but rather on the judge himself doesn't, well, cut it for me. You see, in my opinion, Roberts, while conservative, probably sits somewhere to the right of O'Connor and to the left of Rehnquist. What this means to me is that while he would be pulling the Court right with O'Connor, he's actually pulling the Court to the Left. I honestly do not think, given the Republican Majority in the Senate and a far-right wingnut of a President, that we can realistically hope for anything better than a slight pull to the Left. I don't think Bush would have nominated Roberts to the top slot had he more political capital and had O'Connor not resigned first. I think things played well to our advantage and we lucked out in that someone who was supposed to replace O'Connor is now replacing Rehnquist, and at the next confirmation, we can still demand a moderate to replace O'Connor, whereas we had less room to call for moderation in a replacement for Rehnquist.
- I am not convinced Roberts will Overturn Roe v. Wade Please note that I'm also not convinced he won't overturn Roe v. Wade. I know what Thomas' answers were. And I know who his wife is. However, I think he respects the chaos that overturning Roe would create. I think he appreciates that the fight as it is today is in a proper state of settled disagreement. Meaning, people disagree over it, but it's somewhat settled. I am concerned that he will leave a narrow interpretation of Roe v. Wade in tact, narrower than O'Connor's undue burden. And that the narrowness of the definition will allow for increased state legislating. Yes, that concerns me a great deal. But frankly, I'm not going to get a guarantee out of any Bush nominee, and that's the importance of electing Democrats to state office. Run for delegate or state senate. It really is important.
- I am convinced that he is not a wingnut. Or at least, I'm pretty sure he's not an activist judge in the true sense of the word activist (something that I think will be a disappointment to conservatives who have used activist as a code word rather than an actuality). This is the problem when you use Orwellian terms to describe what you're looking for in a judge. I think he will be a moderate judge. I do not think he will rock the world. I think he loves law and respects law. I do not think he has an overriding judicial philosophy. I think he's likely to get caught up in the intricate details of a case. I think this is a good thing for a judge. Having a judicial philosophy is setting yourself up for either hypocrisy or stubborness. Judicial philosophies are ways to justify bad decisions.
- I have yet to be convinced we could possibly do better. In other words, tell me what we can realistically demand from this administration. It does not take a hella lot to get a judge through. The limits of our ability are pretty outstanding. So I want an actual, reality based assessment of how blocking Roberts will result in a better choice, and what kind of better choice I should be asking for that I can hope to achieve. If we're not getting a Ginsberg, and won't know if we've gotten a Souter until it's too late, who should I demand?
- I am a cynic, and convinced that Bush does not actually WANT to overturn Roe. I think Republicans need Roe in tact more than Democrats do. They rely more on their socially conservative base than we do on the general majority who accept choice as the status quo. (I am not dismissing women's groups and their importance, but there's more to women's groups than abortion, and women are awfully complacent about their right to choice because they've become so accustomed to it). Frankly, if Roe were overturned, it would result in a mass exodus of middle america from the Republican to Democratic party. It would activate all those complacent women voters. It would take away the Right's fury and their pet issue. I think that for the same reason Republicans refuse to pass a partial birth abortion bill with exceptions for the health of a mother (which would stand up in Court) and instead pass one they know will be struck down again and again that they can rail against and accuse Dems of voting against is the same reason their justices will constantly fail to strike down Roe when push comes to shove. So call it a twisted version of disillusioned optimism, but that's a perception that Roberts' comments have done nothing but confirm.
My biggest concerns with Roberts are three-fold. First, he shows a lack of respect for affirmative-action and other social equality programs that would likely bleed over into his rulings. Ditto for a favoritism towards business and corporations (not exactly a group that needs, in my book, anymore help than they already have).
But my largest concern is this: he's so god-damned likable. I don't think he's necessarily another Scalia, but I do think he's a lot more dangerous than a Scalia or even Rehnquist because he's charming and is apt to get along with his fellow justices. Scalia has done a horrible job at convincing fellow justices to join his argument, one of the reasons we've had so many close decisions. He's not a coalition builder. Roberts stands to be highly effective in convincing other justices to join his opinion, which will most likely be conservative. This is my absolute fear. The Court is isolated among itself and the justices influence over each other is an oft-ignored factor that concerns me more than anything else. More than any of his testimony or federalist society credentials, etc. Yet I have to admit that this is not a credible or valid reason to hold up a nomination. (Imagine: "Why are you filibustering, Mr. Reid?" "Because he's a charismatic, friendly, charming and intelligent guy!") So I'm, in a way, asking for a justification that I can believe in that is NOT how likable he is.
Until then, I say release the caucus. Let the Nelsons, Lincoln, Byrd and Landrieu take the votes that will help them in their states, earn the credibility to fight the next round, and put up enough nay votes so that if he does turn out to be a disaster, we didn't let him through without any misgivings. Let people vote their conscience. Unless you can convince me why it's better strategy to be obstructionist. Because I worry that if we block Roberts, we'll end up with someone worse. Remember, they don't need a single Democratic vote to get him on the bench.