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Thursday, October 27, 2005

aprés Miers: a modest proposal

I wrote the comment that follows on a thread about how the Miers nomination threatened to create a new bloc on the court:

Bush might have nominated a brilliant moderate, acceptable to all sides. A justice's Justice. Perhaps someone with enough conservative credentials that they could pass the base...but whose talent and capabilities and love of the Court, and the people it serves, were clear.

Dreaming? Maybe.

The Bush clan is bushel of rotting apples. It's too much to hope for apple pie.


Miers withdrawal affords a chance to revisit the question of "voting blocs," and think anew about strategy. We're in "do-over" land. Upon further reflection and rereading that earlier piece about voting blocs, I think the key relationship on the Roberts Court will be something I neglected to address a month ago: the relationship between Chief Justice Roberts and Justice Anthony Kennedy. Jeffrey Toobin had an excellent profile of Kennedy in the New Yorker a couple months back. It's worth a look now:

Kennedy’s views on abortion have long been ambiguous. In 1989, he joined an opinion by Rehnquist that appeared to call for overturning Roe v. Wade; then, in 1992, in the case of Planned Parenthood v. Casey, Kennedy joined Souter and O’Connor in an opinion that reaffirmed the core of Roe—that is, the right of a woman to terminate an early-term pregnancy. Since then, Kennedy has generally been counted as an abortion-rights vote, along with Souter, O’Connor, Stevens, Ginsburg, and Breyer, but that may not be an accurate inference. Over the past decade, Kennedy has repeatedly expressed his concerns about abortion. Dissenting from a 2000 ruling that upheld the conviction of anti-abortion protesters for trespassing, he criticized the majority for denying "these protesters, in the face of what they consider to be one of life’s gravest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law.” That same year, Kennedy wrote an uncharacteristically vitriolic dissent to the Court’s decision to strike down a Nebraska law banning late-term (or partial-birth) abortion—what he called “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”


That emphasized passage stikes me as key...since Kennedy wrote it after the passage of the Freedom of Access to Clinics Entrances Act. Kennedy's sympathy to "little pamphlets" and "a higher law" may find a friend and ally in John Roberts, whose now well-known arguments on behalf of the first Bush Administration against federal protections for women seeking reproductive health services were part of what prompted Congress, along with the resulting Supreme Court decision, to pass the 1994 act in the first place:

In Roberts' [1991] brief, and in oral arguments he made in person before the Supreme Court, the government argued that a particular part of U.S. law (Section 1985(3) of Title 42, which derived from the Ku Klux Klan Act of 1871) applied only to conspiracies to deprive people of civil rights due to racial discrimination, not gender discrimination.  They also argued that the protestors did "not aim their anti-abortion activities exclusively at women" but "at anyone, whether male or female, who assists or is involved in the abortion process – doctors, nurses, counselors, boyfriends, husbands and family members, staffs, and others."

-(source, FactCheck.org article on the anti-Roberts NARAL ad.)


Roberts and Kennedy are both, and I use this term guardedly, "nice guys"...conservative Roman Catholics with pro-business sympathies who have reservations on "social issues" that mask a willingness to at the very least consider these issues on their face. As Toobin notes, in the excellent article cited above, Kennedy's "...opinions in the Colorado and Texas cases have made him the Court’s most visible defender of gay rights, but his support for gay marriage, a subject many expect the Court will eventually take on, seems far from certain." That seems to be good bet for how John Roberts may come down as well. What I am arguing, then, is that the Supreme Court's natural breakdown...right now...might be: Stevens, Breyer, Ginsberg, and, sometimes, Souter, on one side. And, on the "conservative" side: Roberts and Kennedy in one mini-bloc, representing a kind of conservative "open-mindedness", and Scalia and Thomas representing, each in their own way, conservative "closed-mindedness" in the other.

What the Miers withdrawal creates, then, is a situation where the Democrats must work two fronts. First, defensively, we must in no way allow the nomination of a Scalia or Thomas clone, or someone who will overturn Roe; that is our line in the sand. Second, offensively, we should demand the nomination of a clear moderate whose legal qualifications are unquestioned and well-known. Our best hope is a Justice who would swing to the moderate side of the Kennedy/Roberts mini-bloc..and, perhaps, create with Souter, a true moderate "mini-bloc." That has been, all along, the best we could hope for. The Miers withdrawal means we should be proactive in demanding it.

The battle over the meaning of the Miers' withdrawal has begun. Defensively, our work is cut our for us. The question at hand is whether the religious right's caterwauling means that they will get what they want by defining Miers as "unqualified" while they really meant "not clearly right-wing enough." If her withdrawal is defined simply around the quality of the nominee in that stealth shorthand, then Democrats are left vulnerable to the nomination of a "well-qualified" ultra-conservative in the Scalia/Thomas mold. We cannot let the "ideological" battle become a stealth aspect of the next nomination; the discussion must be above board. In my view, we need to play offense and get out front of Bush's next step.

We need to define the Miers' withdrawal as about an ideological battle as well as about qualifications by making "moderate views" as well as "clear qualifications" our benchmark. We need to demand a nominee who represents a home run for "all Americans" not just George Bush's base. We need to make it clear that the most acceptable way Bush can please his base is to give them some of what they want...ie. a justice's Justice with a clear track record...but to give all of us, and the Court itself, a worthy successor to Sandra Day O'Connor.... a well-qualified nominee with a moderate track record that is available for the world to see, and involves no guess work. This nation deserves a justice the "moderate majority" in this country can come together on. In fact, as a proactive strategy, we should demand just that.

Finally, I'd like to make my own tongue-in-cheek suggestion. The nominee I would request George W. Bush put forward...someone who would be acceptable to a wide majority Americans as a patriot and a moderate, someone who would be symbolic of "national healing" and moving forward together, someone whose brilliance and service to our nation is well-known...someone who's up to the job, and the tasks facing our court...is Albert Gore, Jr.

I'm only half joking.

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