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Yes, Armando, the SCOTUS is extraordinary.  And filling the two vacancies with arch-conservatives will be our extraordinary fate unless Democratic lawmakers, and the general public, forces the hand of BushCo.  Democrats should demand to see the cards before they are played:  The country deserves to be told, prior to any Roberts confirmation hearings, who the nominee is for Sandra Day O'Connor's seat.  Unfair?  Hardly.  No less than the fate of our country depends on it, and we are in position to use our defensive position to good advantage.  Bush is not exactly in a position of strength right now.

The NY Times is today calling for, although not too loudly it seems, a coupling of the two nominees (all bold emphases mine):

Some Democrats have urged that he make his second nomination, for the seat occupied by Sandra Day O'Connor, before the Senate takes up Judge Roberts's nomination.  That seems reasonable.

The critical importance of "coupling" or "packaging" is described after the break.

Neocons everywhere, but more importantly those posting at SCOTUSblog.com, a widely respected and influential website, are adamantly against what they refer to as "packaging" or "coupling," but I will use the term, "coupling." Coupling is simply a joining of the two vacancies as a single set of conditions and considerations in the public SCOTUS debate before the Judiciary Committee:

More broadly, it is in the President's interest not to couple the process of confirming the successors to Justice O'Connor and the Chief Justice. Democrats have a stronger argument against a conservative successor to the Chief if the nominations are perceived as a package. If the process of confirming a successor for the Chief remains separate and distinct, it is easier for the President to maintain that a conservative appointment to succeed the very conservative William Rehnquist will not move the Court further to the right. So I think that the hearings will likely move forward.

If the neocons are against it, you can bet it's a good thing for us.  

The above SCOTUSblog quote was written under assumption that a different person than Roberts would be nominated for Chief Justice, and the writer was wrong about a hearing delay, but they really make no difference.

By using the coupling strategy, Democrats would be seen my main street America as facilitators, not obstructionists, by giving Roberts a fair hearing and an up or down vote, but ONLY if we know who is going to be nominated for Sandra Day O'Connor's vacancy.  It's a more-than-fair trade.  Let them tell America why it's such a bad idea.

Replacing arch-conservative Rehnquist with his former arch-conservative clerk is not the problem.  Replacing Rehnquist AND O'Connor with two Rehnquist/Scalia/Thomas clones is a HUGE problem -- just for starters, say goodbye to the "right to privacy."

Packaging/Coupling are not so much about judicial philosophy as about judicial strategy.  Why fight an ideological battle if we can win the "strategy war" before the first shots are fired?  So let's not get bogged down in battles over judicial philosophy until the framework is in place for debating the merits of the two nominees.  And the framework is, "coupling the two vacancies prior to the start of the hearings."  If successfully framed, we also have a much better chance of getting a SC associate justice "in the mold of Sandra Day O'Connor," our original objective when she announced her retirement.  If the Republicans want Roberts, we must know that Bush has nominated a justice who will maintain the current balance.  Smells like victory is within reach if Democratic lawmakers up on Capitol Hill play it smart, stick together, and are successful at coupling the two vacancies.

Check out the NY Times editorial and SCOTUSblog.  With the confirmation hearings delay, there's a week to sort it out, so it's BLOGSWARM! time on coupling the two vacancies, folks.  Progressives can make a difference.  Effective talking points and sample emails/LTEs encouraged, and Defeatist Democrats can kiss my ass and be rated accordingly (DD-Unproductive).  

Emails sent last night to the Honorable Howard L. Berman (my congressman in Los Angeles) and Senators Diane Feinstein and Barbara Boxer:

Dear __,

With only a week remaining before the start of the Roberts confirmation hearings, it is imperative that you and other Democrats help ensure a fair and open process to fill both vacancies on the Supreme Court.  

These two vacancies must be coupled together, and Democrats must lead the charge.  Americans should know who the nominee will be for Sandra Day O'Connor's vacancy before the Roberts/Chief Justice hearing gets under way.  A replacement for Rehnquist in the mold of Rehnquist is one thing, but two arch-conservatives, who will surely tip the balance toward decades of neo-conservatism, are entirely unacceptable.  If the Republicans want Roberts, we must know that Bush has nominated a justice "in the mold of Sandra Day O'Connor."  A threatened filibuster is always in play, and the Republicans, up against the wall with so many negatives right now, will not exercise the Nuclear Option and bring the Senate to a standstill, although they will probably threaten to do so.  

The balance must be kept at all cost.

Respectfully submitted,

I've never asked for one of my diaries to be recommended.  Except this one.  Thanks.

Originally posted to MoronMike on Tue Sep 06, 2005 at 07:34 AM PDT.

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Comment Preferences

  •  The Rehnquist / Powell precedent (4.00)
    Nixon nominated Rehnquist and Lewis Powell to succeed Harlan and Black in 1971. They took office on the same day.

    I've got blisters on my fingers!

    by Elwood Dowd on Tue Sep 06, 2005 at 07:39:40 AM PDT

  •  asdf... (none)
    SCOTUSBlog is fairly scrupulously non-partisan, and, in fact, the firm that runs it (Goldstein and Howe) works primarily on "liberal" cases--in particular, they do a lot of defendant-side criminal work.  They're certainly "Washington establishment" and/or "insider," but they're not by any means "mostly conservative."

    In fact, Tom Goldstein, the "Goldstein" in Goldstein and Howe gave money to Kerry, Edwards, Hillary Clinton, and the DNC in the past two cycles.  He's no right winger, nor is the firm.

    •  You're probably right, (none)
      but what I've been reading on the site for this subject suggests and "us" versus "them" POV.  But thanks, I shall rephrase and update.

      The rhetoric of the right wing is being fixed around the policy of disinformation.

      by MoronMike on Tue Sep 06, 2005 at 07:47:55 AM PDT

      [ Parent ]

      •  To be fair... (none)
        Lyle Denniston, who posts there, is perhaps a little more conservative than the firm, but is a respected Court-watcher on the level of Nina Totenberg and Linda Greenhouse.

        Sometimes, I think, in our righteous anger over Fox News and similar bull, we've come to think that "fair and balanced" means advocating for our own preferred policies.  That's not any more "fair and balanced" than Fox News' brand of the same.

        •  Point well taken. I revised the sentence. (none)

          The rhetoric of the right wing is being fixed around the policy of disinformation.

          by MoronMike on Tue Sep 06, 2005 at 07:56:03 AM PDT

          [ Parent ]

          •  Actually... (none)
            as I read SCOTUSBlog, what they are saying is "assume it is the President's goal to get the most conservative possible nominee for both seats through.  Here is how this would help/hurt this goal."  That's thoughtful analysis.  It's not "having more conservatives on the Court is a good thing, Bush should do this because it is good and right."  That's advocacy.

            (And I suspect Lyle Denniston would take offense at being called a neocon.)

            •  All very well and good, but how (none)
              does one counter this from RedState.org?  

              Of the names being mentioned, Edith Jones tops the list. A conservative fantasy and liberal nightmare, Jones has a solid conservative record on the Fifth Circuit Court of Appeals and is on record chastising the line of cases flowing from Roe v. Wade. Also on the list is Joy Clement, not because she would be a "hurricane pick," but because she is now a known quantity at the White House, having made it into the top three last time.

              Let's not get too bogged down in a who's who of SCOTUSblog.  The point is that Republicans do not want coupling, and we do.  Any thoughts on that?

              The rhetoric of the right wing is being fixed around the policy of disinformation.

              by MoronMike on Tue Sep 06, 2005 at 08:11:06 AM PDT

              [ Parent ]

              •  Huh? (none)
                That RedState quote says NOTHING about coupling.  FWIW, I expect Bush to pick a woman and/or a minority for the O'Connor seat.  Nightmares would be Owen, Rogers Brown, or Jones.  (All of whom are considerably more objectionable and have nastier paper trails than does Roberts.)  Clement would probably be OK, actually.
  •  Sounds interesting... (none)
    But I'm not a politician, or lawyer...

    "Eagles may soar, but weasels don't get sucked into jet engines" Steven Wright

    by wrights on Tue Sep 06, 2005 at 07:44:08 AM PDT

    •  Are you interested enough to write an email? (none)

      The rhetoric of the right wing is being fixed around the policy of disinformation.

      by MoronMike on Tue Sep 06, 2005 at 08:02:11 AM PDT

      [ Parent ]

      •  I was waiting to hear this idea discussed more.N/T (none)

        "Eagles may soar, but weasels don't get sucked into jet engines" Steven Wright

        by wrights on Tue Sep 06, 2005 at 09:21:16 AM PDT

        [ Parent ]

        •  So am I. (none)
          Not that Katrina isn't important, but twenty "Bush Fucked Up" diaries seems to be diluting the traffic.  This is something that needs discussion now, not next week.  

          We have a chance here to help frame the debate, but it doesn't look like many are paying attention.  I can only hope the Democratic leadership is on top of this.

          So, wrights, since it's just you and me now, what do you think of coupling as an effective strategy?  

          The rhetoric of the right wing is being fixed around the policy of disinformation.

          by MoronMike on Tue Sep 06, 2005 at 09:46:19 AM PDT

          [ Parent ]

  •  No leverage. (none)
    Republicans will resist this one to the end. There's no way they'd cave to this.

    BUT...

    With Roberts now essentially having been nominated to a new post, a Senator interested in forcing such a coupling might contemplate putting a "hold" on Roberts' new nomination.

    To be honest, a Democratic Senator doing so will probably not succeed in bringing public opinion overwhelmingly to his or her side, if the demand is that the other nomination be made before the hold is released. I think the GOP will likely ignore that demand, and be just fine for doing so.

    But if Mary Landrieu did it, that'd be different. If she put a hold on Roberts, and indeed on every Bush nomination from here on in, for any office, until Louisiana is back on its feet, and the Bush administration's incompetence and malfeasence are thoroughly investigated, that'd be a different story.

    You correctly note that this strategy could trigger the nuclear option. But Landrieu is one of the "Gang of 14" who signed the nuclear option compromise deal. She gets to define "extraordinary circumstances" for herself, and it's up to the Republican 7 to come out and tell her to her face that drowning 10,000 Louisianans isn't "extraordinary" enough for them.

    I'd like to see them try it.

  •  Roberts alone might sink (none)
    Enough has come out about Roberts to make his confirmation questionable, especially to the chief-justice seat.
    •  You're right on that, (none)
      but I think we need to do this independently, BEFORE the hearings take place.  This strategy could have a synergistic effect on other SCOTUS confirmation matters.

      The rhetoric of the right wing is being fixed around the policy of disinformation.

      by MoronMike on Tue Sep 06, 2005 at 07:54:44 AM PDT

      [ Parent ]

  •  Why coupling can be bad for us too... (none)
    Roberts replacing Rehnquist may not move the court to the right.  Remember, Justice O'Connor said she would remain on the bench until her successor is seated.  BushCo is unravelling right now.  If we can continue to help it unravel, then Bush may be in no position to get any nominee of his seated.

    Coupling guarantees 2 SCOTUS picks for Bush.

    Uncoupling in the presence of a dissolution of BushCo may give us the time needed for any of the (please let it be so) resignation/impeachment/2006 victories, and limit BushCo to 1 pick.

    Sure, wishful thinking, but maybe?

    America began begins with freedom from King George's empire.

    by bribri on Tue Sep 06, 2005 at 09:10:34 AM PDT

    •  It's a given that replacing Roberts with (none)
      Rehnquist will not move the Court to the right.  If you read the specifics in the diary, the coupling strategy is to ensure that Sandra Day O'Connor's replacement is NOT someone like Janice Brown.  Once Roberts is in place, with no foreknowledge of O'Connor's replacement, we'll just get another winger.  Why wait?  By then it's too late.

      Judging from the paucity of interest so far in this diary in comparison to so many "Bush Fucked Up" screeds, I'm a bit disappointed that such an important issue is being ignored by dKos members.  

      Sure, Katrina is important, but so is this, and will have an impact long after New Orleans, Biloxi, and Gulfport are rebuilt.  

      The rhetoric of the right wing is being fixed around the policy of disinformation.

      by MoronMike on Tue Sep 06, 2005 at 09:22:11 AM PDT

      [ Parent ]

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