(
Great analysis by RonK. While I don't know whether I agree with his details or not -- I'm undecided -- he's right that it's all about the second justice. And whether the Roberts' strategy was a success or failure can't be determined until we see what happens with the second nominee. It's a two-part act. Part One is complete, and many are unhappy. But none of us know how this story ends. Ultimately, who the second justice becomes will determine whether Feingold, Leahy, and the rest of the Dems that will vote "yes" did the right thing or not. -- kos)
[Crossposted from The Next Hurrah ... with sincere regards to Armando Agonistes.]
If you always smile, nobody will know when you're happy. Always
frown, and nobody knows when you're sad. And if you shout all the time, how will anybody
know when you're really outraged?
Judge Roberts will soon be confirmed as Chief Justice, with many
Democratic 'Aye' votes ... and so there is wailing and gnashing of
teeth and rending of garments in progressive quarters.
Are our frantic exhortations all for naught? Are our party leaders utterly
lacking in brains, or hearts, or spines, or testicles, or situational
awareness, or moral compasses? Are they lost in the beltway bubble?
Have they sold us out? Is there no hope? Are we doing something wrong?
Are we doing everything wrong?
Doesn't anybody listen -- the voters? The media? Elected officials?
Doesn't anybody care?
The psychic torment is genuine, but our
message is undeliverable, our anguish is misplaced, nobody cares -- and it's OK.
There's an epic performance in progress on the stage of US history, but we're not actors in this drama. We're not even in the intended audience. Neither are the media, the interest groups, the voting publics of 2006 or 2008 (with limited exceptions) ... nor (with very limited exceptions) are most members of the Senate, of either party.
Hint: the people who should care already do care. The people who need to "get it" already get it. Why don't our leaders pull out all the stops against Roberts? Because they care, and because they get it.
The thigh bone's connected to the knee bone, the knee bone's connected to the shin bone, and there is intelligence to this strategic design. It's been inaptly described as "keeping our powder dry" ... but it's really a matter of signal contrast.
Begin with Chuck Schumer's "devil's bargain" (my paraphrase):
What would you have paid the Devil, at the start of his presidency, for a guarantee that Bush would leave SCOTUS no worse than he found it? A lot, probably. So far, Roberts is no worse than Rehnquist ... just younger, plausibly more circumspect, and a stronger counter to Scalia's dominant intellect.
And O'Connor's 5-4 swing seat is still in play.
Barring some jarring disclosure, Roberts was going to be confirmed no matter how many Senate D's showed off their balls to excite the crowd. The next nomination is the one that counts. It counts big, and it could go either way.
[By "either way", I don't mean Bush's next nominee voted up or voted down. I mean the difference between a Thomas and an O'Connor, between a filibuster sustained or busted, between a Nuclear Option detonated or defused.]
What does it take to break even with the lousy hand we've been dealt? That's where signal contrast comes in. Shhhh! There is a performance in progress, and the critical audience is a mere handful of conservative and/or pro-life Senate Democrats (with word-of-mouth buzz to a handful of moderate and/or institutionalist Senate Republicans).
The next nominee -- whoever he or she may be -- will receive every Republican vote. Our only stopper is the filibuster.
Democrats start with 38 seats outside the anti-nuclear 7+7 Our Gang Comity compact. To sustain a filibuster we must hold all 38 votes, and then find a way to get to 41. (Or 42 for a margin of safety, and to forestall unbearable pressure on #41.)
We've got nothing unless the Gang of Fourteen breaks ranks.
They'll need strong reasons -- "extraordinary circumstances", and then some -- to vote against cloture. In some cases, this vote will run counter to their personal and principled (conservative, pro-life or institutional) convictions.
To move these votes, leadership and the caucus majority must emphasize the intensity of their principled opposition ... and by extension, the intensity of repercussions within the caucus, and in the party activist core, and in a post-2006 Senate.
If 35 D's vote 'Nay' on Roberts, there's no space to the left for a contrasting message on (say) a Janice Rogers Brown. No contrast, no message. No message, no impact.
But 17 Nay's on Roberts would define a baseline from which 37 Nay's would project a contrasting signal to the attention of Democrats #38, 39, 40, 41, and 42.
If 30-plus Dem's vote against Roberts, they will win our approval ... but it means we've already conceded the next round.
If we sell out to the bare walls now, the other side knows exactly what we've got ... and we lose both the potential for contrast and the marginal advantage of strategic ambiguity. That's what we've got. That's ALL we've got, and if we give it up, there's no burden of guesswork on the other side. Done deal, on their terms.
Next time, we could still fail to deter the worst possible nomination. We could fail to mount and sustain a filibuster. We could be outgunned in a Nuclear Option showdown.
But at least we've dragged the showdown down the calendar ... where W's numbers suck worse than ever, Frist is a lame duck, McConnell is sore that his brother didn't get the call, conference chair Santorum has already broken ranks, there's a ton of unfinished budget business on the calendar, and members are looking ahead to next year on the hustings. [Correction: McConnell is not McConnell's brother, and I'm a monkey's uncle!]
So it's high drama, with possible surprise endings. We're not in the show. We're not in the intended audience. And -- Shhhhhh!!! -- the curtain is about to go up on Act II.