Dear Sen. Obama:
please allow me to predicate my statement with its conclusion:
The Democratic leadership is failing, time and again, by lacking in all or most of these aspects:
- solidarity of purpose and conviction
- articulation and adherence to guiding principles of progressive legislation and governance
- strategic courses of action
My case in point is the subject of your recent diary here at daily Kos.
In my opinion, the Democratic leadership failed to show strategic judgement and leadership in
not demanding and insisting from the day after Justice Rehnquist expired on 9/3/05, that they would want Bush to name his second nominee.
Had you done so, you could have voted based on whether the eventual composition of the court would serve the interests of the people in the most reasonable, if not progressive, manner.
Please read on.
As pointed out by Elwood Dowd
here, there is a historical precedent of the scenario:
The most recent example of multiple concurrent openings on the Court was when Harlan resigned and Black died in 1971. Nixon named Rehnquist and Blackmun together, and the Senate confirmed them as a twofer.
What baffles me is the lack of simple commonsensical strategic line of thinking, as witnessed in my opinion in this case, on the part of the Democratic leadership.
There was an interesting article that appeared in the Houston Chronicle on 9/7/05 suggesting precisely this approach to the matter of supreme court nominations. The online version of that article appears to be no longer accessible, but google's cache version is currently available at this link.
Here is that argument:
Before voting on Roberts, insist on second nominee, Houston Chronicle, September 8, 2005, JAMES E. COLEMAN JR. and ERWIN CHEMERINSKY
Democrats must insist that the Senate not vote on John Roberts' confirmation to be chief justice until after Sandra Day O'Connor's successor is also named. The Senate needs to evaluate both picks together in assessing their impact on the Supreme Court, now and for years to come.
Also, Democrats need to make clear that since President Bush has already picked a conservative in Roberts for one vacancy, the other selection needs to be a more moderate Republican in the mold of O'Connor. Otherwise, a court that currently reflects a moderate mainstream view could become one that would be significantly further to the right and hostile to basic civil rights and civil liberties.
Since the last appointment to the Supreme Court 11 years ago, the justices have decided a number of important cases involving the proper role of government in our personal lives, the responsibility of government for protecting the general welfare and our continued commitment to the values underlying the rule of law. During that period, the court's majority, often by 5-4 votes, has resisted the assault (once led by Roberts) on a woman's fundamental reproductive rights; recognized the importance of affirmative action to the democratic purpose of public education; excluded government from the bedrooms of consenting adults; knocked down repeated efforts of some to inject religion into the activities of government; ended our internationally embarrassing execution of mentally retarded and juvenile offenders; and reaffirmed that not even the president is above the law.
Beyond the issue of whether these moderate decisions will be overruled, there also are important national issues that likely will come before the court in the next few years. For example, some conservative scholars have argued for the court to significantly limit the scope of Congress' spending power, claiming that federal aid for disaster relief is unconstitutional. The new justices also will have pivotal roles in deciding key questions concerning the scope of the president's powers as part of the war on terrorism.
The key question is whether the president will attempt to replace the moderate mainstream represented by Justice O'Connor with a right-wing nominee such as Justice Antonin Scalia or Clarence Thomas, who interpret the Constitution in a way that will produce decisions that are fundamentally inconsistent with how the public views the role of its government, both in our private lives and as trustee of our general welfare and national values.
Just as it would have been unthinkable for the Senate, after the decision in Brown v. Board of Education, to confirm a Supreme Court nominee whom it knew or suspected would have cast the deciding vote to overturn Brown, it should be equally unthinkable for the Senate now to vote to confirm a nominee who is unwilling to state unequivocally that he or she accepts as established that Roe v. Wade protects a woman's fundamental right of choice or that Grutter v. Bollinger correctly upheld the constitutionality of affirmative action in public education. For a Democrat to do so should be a career-ending vote.
The crucial question for the Senate must be whether the two picks for the Supreme Court together make it more likely that these and other key precedents concerning civil rights and civil liberties will be overruled.
John Roberts is unquestionably more conservative than Sandra Day O'Connor. With one conservative nominated, the Democrats must do all that they can to insist that the remaining nominee be more moderate.
The importance of what is at stake cannot be overstated. Roberts is 50 years old. Assuming that the second nominee is around the same age and that these justices remain until they are 85, like John Paul Stevens, they will be on the court until the year 2040.
The Senate must know who these two justices will be before proceeding further with either of them and must ensure that together they will not endanger our basic freedoms for decades to come.
Coleman and Chemerinsky are professors of law at Duke University School of Law in Durham, N.C.
I had posted a sparsely attended diary with this suggestion on 9/21/05 here. An earlier discussion that ensued at the GOP-friendly freerepublic.com site is at this link.
In summary, as I have already stated at the beginning, the Democratic leadership is failing, time and again, by lacking in all or most of these aspects:
- solidarity of purpose and conviction
- articulation and adherence to guiding principles of progressive legislation and governance
- strategic courses of action
As our disappointments accumulate, our resentment multiplies.
Thank you.