Redstate

I think it is grossly unfair to make someone go through the process if Republicans are unwilling to make sure they get confirmed.  We need to fight with alll our might to ensure the person gets confirmed.  For too long, we have allowed the Democrats to use the MSM to pressure us into giving up or having sacrificial lambs.  It is time to use whatever means necessary to stop the Dems in their tracks.

Now, the purely logical argument; let's get while the gettin' is good.  With the state of affairs politically today, this could be the best opportunity we have to get another conservative on board.  The '06 elections do not look to be positive for Republicans.

Ted Kennedy will vote against Roberts... As if we didn't know that before the whole thing started.  - and from the way Kerry is talking right now on court tv he will vote against Roberts also - again.. go figure..

The Leahy announcement indicates several things, but I wonder about the speculation as to a sacrificial lamb. Isn't it also possible that this sets the stage to call the bluff on the nuclear option? Various posts and diaries at RS are all over this, but this is the first theory I've seen that we basically get to watch Brown/Owens/Luttig/whomever get thrown to the wolves, only to see a follow-on candidate approved.

What's to say the approval comes with nominee #2? Why wouldn't the filibuster continue until defeated, even if that's nominee number 3, 4, 5, x???? Why not defeat the filibuster right now?

Sure will be fun to watch.

PS - the 85+ vote predictions look a lot better!

Of course, Erick is right - this is posturing for the next nominee.  And it proves that even the hardest-left Beltway Democrats understand how the game is played far better than do the Kossacks.

I think it is the kind of strategy you do if you're not in the MAJORITY.  We have the votes to pass anyone that is worthy.

Don't back down from the fight.  The only options they have are to obstruct and that can't work.

They're going to vote No on any nominee the President sends up there so we may as well have the best nominee.

Isn't it possible that some Democrats actually are reasonable?

John Roberts seems to be a conservative, but well qualified and non-ideological jurist.  I suspect if the President nominates more of the same, they'll also be confirmed.  As all have acknowledged, the Roberts nomination set an awfully high bar.  It will be interesting to see how the next nominee compares.

It may be doubly unfair, but if Bush thinks that he needs to tab a real conservative who may lose, and have another waiting in the wings, it may make sense to send up a female or minority nominee first, so if the Dems defeat him/her they can't be heard to complain if the follow-on is a white male.  (The same dynamic doesn't really work in reverse).

Anyway, be careful what you wish for - there are many ways in which the next nominee could succeed, or could fail.  So it behooves Bush to line up both a nominee and a second choice, both of whom would be acceptable.  Fortunately, there's a pretty good stable of qualified candidates beyond my personal favorite, Michael McConnell.

Some Democrats really are reasonable, I don't doubt that.  Leahy is, to all evidence, not one of them.

It will be interesting to watch Graham, DeWine, McCain and Ben Nelson. They seem to hold the keys to the nuclear option, and given a pre-approval role, they could likely gain a 55-45 vote, with or without breaking a filibuster.

It's curious that the democrats have so much riding on the choice issue, since that plays right into McCains anti-abortion credibility. It lessens any cred the democrats want to give to McCain if they trash his role. Also, they seem to be missing the commerce clause arguments which Schumer and Specter were raising late in the Roberts questioning. That seems a political loser for denying the next nominee.

It's all about abortion rights, and Coburn and Hatch have cleared the field with their closing questions of the witness panels.

I think the GOP has stymied the democrats, and it's only the Stevens replacement which will show us how extensively.

They'll put up a good conservative, have the Dems vote against the nominee, and then put up someone else with similar views daring the Dems to block the second nominee too.

I hope that's not true.  I really think playing politics with the nominees that way does the Court a disservice, does the public a disservice, and does the process a disservice, especially at this point.  Playing this game like some kind of all-night poker competition isn't how we should approach the nomination process for justices of the Supreme Court.  I think the President picked Roberts because he was the best qualified person he could find to replace Rhenquist.  I don't think he should succumb to the temptation to play some kind of political game by "betting" that the Democrats will obstruct the next nominee, yadda yadda.  

Call me an idealist on this, but the President's prerogative and obligation is to nominate the most qualified people for the Court and support them as best he can, come what may.  I really have a distaste for trying to project some kind of political gaming into the process.  

One of the reasons I think Roberts is so eminently qualified is precisely because he was so extraordinarily circumspect during his questioning -- he upheld the ideal that Court nominations shouldn't be a political football, and he strove to distance himself from answers that would prejudice members of the existing court against him, should he be confirmed.  I really do hope that the political gaming about the next nominee isn't motivated by this kind of calculation.

I don't care whether Leahy can claim the moral high ground on this or not.  And I don't think the White House should get into the business of putting forward "sacrifical lambs" simply for the purposes of having them voted down for political reasons.  Let's let the inside-baseball cynical interest groups stoop to that kind of political machination.  Bush should nominate the most qualified person that comports with his view of what the Court should be, and support her or him to the nth degree, and let the chips fall where they may.  If the Democrats choose to obstruct that person, fine, and let them go to hell for it, but let's not play that game with the Court.

It is very good news that there is a long list of qualified candidates. Also, that as long as Specter maintains any sort of decorum, running out the clock is not really feasible. Democrats regaining the senate in 2006 is unlikely, and too far off to start stalling now.

This is bad.  Republicans should WANT Roberts to be confirmed on a party line vote.  "Reasonableness" - or, really, the appearance thereof - only benefits Democrats.  Republicans have basically always been reasonable with Democrat SCOTUS nominees - just look at how Ginsburg and Breyer were treated.  Of course, the Bork and Thomas fights show that Democrats have not been similarly reasonable.

We need to break that disparity, which is obviously negative for Republicans.  And I see no way of getting Dems to be more "reasonable" - so Reps just have to be more unreasonable.  And the only way to do that is to show Reps that there is no reasonableness left in SCOTUS confirmation fights.

A vote of 80+ for Roberts will certainly look "reasonable", even if just a political ploy by the Dems.  It would be TERRIBLE for us.

It is telling all right.  All this sudden democratic support for Roberts.  But you are wrong in what it tells you.  It tells me they know all they need to know about roberts, and if he is not another david souter, he is at least better (to them) than either O'Connor or the last Chief Justice.  Why can't conservatives see this?

Believe me, you will soon.

Veyr well said, but it won't be the POTUS who backstops this analysis, it will be the senate position on the filibustering of judicial nominees.

Bush needs to meet the requirements of at least 50, and include some democrats, which Baucus and Nelson may give him, and he's done with the principled appointment issue. It then becomes the senate's mess.

Here's hoping they're up to it.

If the President nominates a firebrand with a clear political agenda then the President should be ready for a fight, and a fight he could easily lose.  He won't lose because the Democrats will indefinitely filibuster the nominee.  

The President will lose because the Democrats will portray the choice as being purely political and not a good judge.  The President will lose because the Democrats will the choice as being an abuse of power.  And ultimately the President will lose because he will lose Republican votes if he nominates a Janice Rogers Brown type idealogue.

Don't expect his next nominee to have a state opinion on Roe.  Expect his next nominee to be someone similar to John Roberts.

I'd normally agree about Leahy, but he seemed VERY reasonable to me at the hearings on Roberts.  

Why is it that the democrats are considered "unreasonable" on this nomination issue? Roberts is going to get confirmed no matter what the partisans on the Left want. You may say that they "appear" reasonable--why can't they just be reasonable?  Recall that of the 9 justices that sat on the courts, 7 of them were nominated by Republican Presidents and were all confirmed with large majorities (save Thomas). Were they appearing unreasonable then? So while you point to Ginsburg and Breyer, also make sure to mention that others--like Scalia--recived large bipartisan support.

Also, what's up with people literally begging for the Nuclear Option to come up? The country's divided enough. It may make for exciting politics, but that's about it. Wishing for democrats to be unreasonable and vote a party-line so that we can ram through a particular nominee is like wishing to witness a car crash for some excitement.

Plus, using the N.O. may not be the best thing to have happen. I'm not sure that just because Democrats were in charge for 40 years that by rule the Republicans will be in charge for the next 40.  It can come to backfire sooner than we think.

While I share Kowalski's concerns about the politicization of judicial nominees (and IMO it's only going to get worse), I'm also against sending in a nominee for the Dem's to sacrifice on purely pragmatic reasons.

The way I see it, just looking at it from a pure partisan perspective, Democrats were going to lose on the issue either way.  If they obstruct Roberts or are seen as voting in lockstep against him because he's Bush's nominee, they lose pretty much any credibility in opposing the next one as well as provide the Republicans with a "Get out of consulting with Senate Democrats because they'll never like anyone you nominated anyway for free" card.

On the other hand, if Judge Roberts is confirmed with strong Democratic support, it provides momentum for the next nominee while handing the President a key political victory.  Success breeds success and the President is going to be much stronger after Roberts is confirmed as Chief Justice particularly with his base who will see this as Bush keeping his promise on one the most important domestic issues*.  

Either way, sort of some unforeseen scandal regarding Roberts that stops his, his confirmation will be a political victory for Republicans and the Bush administration regardless of how Democrats vote.  IMO it would be best to capitalize on the momentum from the victory to get the next nominee through.  Political capital can be spent or it can be wasted and using it on a nominee that you won't support or don't hope to get through is the latter, thereby making it more not less difficult to get the next one through.

* I disagree with many that the judiciary is the most important but it is one of the most important issues and one that has near-universal appeal amongst the GOP base.

Those are my emotional cords you're pulling .. although I think you misspoke and meant to say he WAS another David Souter.

As far as Roberts' conservative credetianals, we'll see by the end of the first term on the two abortion cases.

Well, I hope they are not actually going in with that mentality.

If they are saying that they are going to put up the best, very conservative judge they can find and see if they can get him through, well that's one thing.

I agree that we don't want to literally waste time and let O'Connor rule on some more cases prior to getting a nominee.

I'd rather go nuclear than let the Dems block a nominee on their political views.

Priscilla Owen would never be sacrificed by Bush so if we see her first, we can pretty much guarentee that she will get the White House's backing.

That must be wrong.  Who on earth would agree to step up to be the lamb?  If the White House is playing this level of hardball, they're gonna need a patsy.  And no self-respecting jurist would want to be one.

Having said that, has it occurred to anyone else that the White House seems to be taking a page from Poppa Bush's Supreme Court playbook: nominate a highly qualified stealth candidate to set the stage for a hard right nomination?  The upside of this strategy for Bush II is that it got Thomas on the Court.  The bad news, of course, is that it also got us Souter.

No one can predict with certainty how Roberts will play out (but I'll try: more conservative than O'Connor, less than Scalia).  But the good news here is that, if Bush II is now following Bush I's lead, we can predict a very conservative nominee for O'Connor's seat.

I love JRB, but she's said a lot of things that make even conservatives queasy: even Ramesh over at NRO has, as you know, suggested that her apparent zeal to reconsider the lockstep rejection of Lochner makes her unacceptable.

Although Bush can and probably will tap a predictably conservative nominee for O'Connor's seat, somebody who's thoughtfully taken issue with Holmes's Lochner dissent (as JRB has) is easy to tag as an idealogue and therefore a tough win.

My guess and hope is that the "sacrificial lamb" language is defeatest language being used by some middle man advisor passing along the information who up to now has attempted to be oh-so-sophisticated and roll his eyes as more sophisticated than the conservative kooks who actually think a JRB or Jones-type choice is politically feasible, and now that the political calculus may be pointing openmindedly toward that type of pick since a)they're going to get a big fight anyway from DEMs and b) there's a lot of grumbling underneath the surface by base grass roots conservatives about "I'm not an originalist/precedent first!" Roberts, they chalk it all up to "oh well, what will it hurt to put someone who we know will lose up there first, we'll calm some of the right wing base and can always follow it up with a stronger pick"... its my hope Bush and his people would put a pick like that forward AND not be defeatest, but fight and make the case strongly for a constitutionalist vision of jurisprudence directly to the American people.  Thats a winning strategy, win or lose the short term battle of the specific nominee.

If POTUS wants to put up a lamb, he should put up Brown, and follow her up with Pryor.

Brown may make it through.  If not, her failure to make it throught should enrage some conservatives enough to really be motivated about Pryor.

This is how one takes a stand.

the President could do for Democrats is nominate Janice Rogers Brown to sit on the Supreme Court.  

By the time the Democrats and MSM finish flaying her even most CONSERVATIVES would be leery of her.

While it is a shame and a crime that soon-to-be CJSCOTUS Roberts will not receive nearly as many votes for confirmation as Ruthie the Pinko, I have a very, very difficult time seeing this as anything short of good news.

John Roberts certainly sets the standard for future nominees left and right, and while it will be very difficult (neigh on impossible) for almost anyone else to reach that standard, it is far from certain that, just to pull a number out of my backside, 85-votes for Roberts' confirmation immediately drops anyone who falls just a wee-bit short of "The Standard" into filibuster territory.

Sorry, I just don't see it.

The only way I can see a nominee being successfully blocked is if the "Right-Wing LUNATIC!" charge can be credibly applied to the nominee, whoever s/he is.  Merely having the likes of Babs, Up-Chuck, and Fat Teddy run around screaming "Right-Wing LUNATIC!  Right-Wing LUNATIC!  Right-Wing LUNATIC!" over and over again is not going to be sufficient by any stretch of the imagination.  Sure, the MSM will play that hand for some time and sure, the dKursers will bark at the moon, but it's hard to see the average voter taking it at all seriously when, again, Roberts is The Standard®.  The question will arise, "Uh, so why again is it that Nominee A is so much less-qualified/more-extreme than CJ Roberts - who received 85+ votes to confirm?"  Likely-as-not, that question cannot be answered to the satisfaction to the average voter, the Democrat opposition will be shown to be (as with just about everything else) obstructing just for the sake of obstructing and we're right back to where we are now with Judge Roberts.

An example is Miguel Estrada.  Estrada was not kept off the Appellate Court because the "Right-Wing LUNATIC!" label stuck, not that the Demos didn't try.  He was kept off because of a procedural maneuver used by the Democrats (whining about a "lack of access to records") enabled by the unwillingness of the President to engage them - something that Roberts has already precisely cleared as a hurdle.  Thus unless the "Right-Wing LUNATIC!" charge sticks, it is remote at worst that Estrada could be similarly blocked by the same procedure, and would thus likely win confirmation, possibly with just as many votes in favor.

Or am I missing something basic here?

So, it seems to me that the object of the "game" becomes finding a nominee who is conservative, constructionist, reasonable and (hate to say it) telegenic - someone who looks and sounds reasonable to the average (casual) voter, rather than finding Roberts 2.0 because Roberts 2.0 is probably not out there to be picked (or so goes the perception of the casual voter).

I believe (based on nothing more than a hunch) the President knows this - which is why I believe JRB is, in particular, off the table while other conservatives (Lutig, Garza, the Ediths, etc.) are.  When they are brought up, we'll do the dance, there will be bluster and fury, but it will all signify nothing because The Standard® will be visibly in place for all to see.

Hope springs eternal, anyway.

Cheers.

Given that Judge Roberts is obviously as qualified as you can get for a seat on the U.S. Supreme Court, assuming that the Senate voting on the Democrat side is now tactical, Senator Leahy is playing it smart and Senator Reid is playing it dumb.

By voting to confirm Judge Roberts, Senator Leahy is now perfectly positioned to be able to make the very plausible argument in voting against the second SCOTUS nominee of President George W. Bush that the person simply does not rise to the level of Roberts, who should be the standard for Republicans and this administration for U.S. Supreme Court nominees.

Senator Reid has simply shown that the only nominees he would be willing to support are those who would be acceptable to a President who was a Democrat, which are not going to come from this administration, thereby losing any and all credibility and coming off as a complete obstructionist.

I like JRB for the appelate court where she sits, but I don't think she's got what it takes for the SC.

I like Owen much better for this slot.

The main reason Estrada was blocked was because of memos the Bush department wouldn't release.

Now Roberts will pass without Bush releasing similar memos.

So the Dems will need a new tactic to block him.

Does flaying come under the "advise" or "consent" provision of the constitution?

the Democracy provision of the Constitution.

not to nit-pick, but the word "Democracy" does not appear anywhere in the US Constitution - nor does any of it's derivatives.

Breath in some paper bags folks. 90% of the voters don't care how the Senate vote splits and 90% of the remaining 10% won't be able to give you an accurate count in 6 months. This is all Beltway Baloney. The Dims have made this country sooo partisan that they have completely lost sight of their responsibility in governing. Their confirmation voting stategy is just symptomatic of their downward spiral into irrelevance. They think it is important, it isn't.

wouldn't you say?

you believe "Deomcracy" == "Republic".

I don't.

YMMV.

Filibuster isn't in the Constitution either.

Note: Unintended typo above - it's "advice" the senate provides. I suppose they think it means they "advise" the president, and perhaps it does.

The "sacrificial lamb" isn't going to be someone who is sent out to slaughter without The White House standing firmly behind him or her. It would be someone who we would be thrilled if he or she actually got on the court. But it would be someone who would incense the Democrats so much that they would basically turn so red that their heads explode. (Does this nominee sound like Judge Janice Rogers Brown to anyone else?)

Lets say hypothetically that it is Judge Janice Rogers Brown. If the Democrats are successful at batting her down should Senate Republicans be too chicken to nuke the Democrats' filibuster, nominating someone else just like that nominee like, say hypothetically Miguel Estrada or Edith Hollan Jones, to just DARE the Democrats to make this an election issue to drag into the 2006 election cycle. Remember, this would be a White House strategy, not necessarily a Senate Republican strategy. With weak-kneed Senate Republicans like The Gang of 7, not to mention Voinovich and Specter, The White House NEEDS to have its own strategy separate and apart from the Senate's strategy - if for no other reason than to send them the message, "Buck up boys and girls...if you can't get this guy or gal through, you're just going to get more of the same. So, you'd be well advised to bite the bullet and get the job done now."

The Bush Administration and the Senate Republicans would look so heroic going to the mat for excellent justices who just happen to be a 1) black female, 2) Hispanic male, or 3) female who should be on the court right now instead of Souter, I think that they would enter into the 2006 races in very strong positions. I know I would well up with pride.

And I don't know why Republicans run away from the term "nuclear option" and why Democrats use it menacingly. After all, in my history book, nuking Japan ended World War II and brought peace to the world. Just like using the nuke then, using the nuke against the Senate Filibuster Rule with regard to all nominations that advise and consent are required under the Constitution, doing so would be legal and necessary.

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He indicated that conservative Senators including Coburn believe Roberts will uphold Roe v. Wade.

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That's a bit troublesome.  I guess we'll know more on his stances in January when some of the new decisions come out.  Now if we can just get O'Connor replaced before the decisions are decided.

In between his furious working over of the New York Times crossword and blubbering on about bipartisanship, Coburn's hazarded a prediction regarding Roberts voting to uphold Roe v. Wade?  Is this the same Sen. Coburn who said the other day that saddling future generations with debt is morally worse than legalized abortion?

Considering the source, I'd take this with a grain of salt.

... but if Roberts for some reason upheld Casey or Roe, I'd be inclined to (how to put it) ... believe him, if that makes sense.  I'd assume that the arguments made in the case were valid and compelling.

What I mean is, in watching him I have developed a certain faith this this guy will uphold the constitution -- which conservatives claim is the crucial test.  If in Roberts' estimation Roe and Casey deserve to stand, I think my reaction would "Well, I guess it's a valid interpretation, then."

I'm not suggesting we rehash the core contitutional princuples (again). My point is simply that I am doing what we have been asking the Senate to do:

I am expressing a faith in Roberts' legal judgement.

> Isn't it possible that some Democrats actually are reasonable?

No.

I understand what you're saying and actually, you're point makes me more likely to doubt Coburn than to doubt Roberts (using my crystal ball).

I mean, I trust Roberts' judgment and intellect, but not more than I trust my own, frankly.  He's a good pick, but I'm not going to abdicate my opinion to him if he makes decisions that don't make sense as constitutional law.

Leahy comes from a state that sends a socialist as its sole representative in the House, Reid comes from a state that voted for GWB twice.

that you and John Roberts are on equal footing when it comes to Constitutional Law?

How many here really expected the Democrats to act in good faith?  How many disagreed with the notion that the Democrats would oppose any nominee Bush came up with?

It's obvious everyone expected this from the Democrats.  In fact, even when someone like Leahy votes yes, the instinctive reaction is that they're just acting reasonable as a political ploy, and everyone knows better.  So it's clear no one expected good faith from the Democrats from the get-go.

So then we turn to the argument that "as long as the Democrats are going to oppose, why not nominate the best nominee?"  You have to give me a good reason why this argument did not apply to the LAST nominee.  Surely the President did not do it out of selfless bipartisan love; there was a political calculation involved.

So let's assume Roberts gets confirmed next week by a 75-25 vote or so.  That's a lot of no votes, historically speaking, but it's hardly a barroom brawl in the Clarence Thomas mold.  The vote will be taken and Roberts will be on the Court.

So with this being the result, what makes anyone think the President won't apply the exact same thought process that he used the last time, and send someone as close to the mold of Roberts as he can find?  Is he really going to be so outraged by a couple dozen no votes from the minority party that he will change his paradigm?

I think it would have applied to the last nominee if we were only facing a single opening.

JFK2 sent an email a while ago saying

"I want to tell you how I will vote on the nomination of John Roberts to serve as Chief Justice of the United States.

I will vote against this vitally important nomination, blah blah, I refuse to vote for a Supreme Court nominee who came before the Senate intent on demonstrating his ability to deftly deflect legitimate questions about his views, opinions and philosophy, and so on ...

Sincerely,

John Kerry"

that the President is going to look for the EXACT SAME type victory he had with Roberts when he nominates the next guy.

This is a big win for the President.  Honestly I would say the Roberts nomination is one of the best political moves he has made in the White House.

...Jeff Bingaman (D-NM) more or less announced on the Senate floor recently that he was for Roberts.  Look like common sense has prevailed among the Dems and they're positioning themselves for the next one--contrary, for what it's worth, to my prediction.

What dies this mean?  A somewhat less likely chance of Buch picking a very strong conservative with a long and controversial paper trail.  Maybe now just a strong conservative with a somewhat shorter paper trail.

It seems like the President went out and found the most qualified person he could.  He should do that again.

Maybe now just a strong conservative with a somewhat shorter paper trail.

I really think that the President isn't much interested in picking an ideologue at all.  He wants to create a legacy. IMO, he wants to build a Supreme Court that will be looked upon as one of the great courts in our history.  You don't do that by picking policians in black robes.

Nixon tried that with Haynsworth and Carswell. We wound up with Harry Blackmun, possibly the worst justice ever and author of Roe v. Wade. If he nominates a known conservative, he declares war, and he'd better be prepared to win.

He could nominate Jones, who the left will hate, but would be a qualified justice and one the right would be pleased with.

If the dems turn her into Bork, Bush can always put forward a Luttig, or McConnel or similar.,

OK, cheap shot.  I couldn't resist.

so you think Roe/Casey is solid constitutional law?

Other than possibly JRB, or maybe Owens, I just don't see how nominating a sacrificial lamb is even possible.

We've got 55 votes.  For someone out of the "mainstream" like JRB or Owens, we would lose Chafee and the Maine sisters.  But we have Ben Nelson (he's up in 2006) and so we're stuck at 53.  Possibly Specter would defect, but really I don't think even those weak-kneed Ohions could follow given the fallout on the G14 compromise.

The Dems CANNOT filibuster unless GWB goes wobbly, and Frist will pull the trigger if they try.  Graham, DeWine, and McCain will vote nuclear if pressed on a high-profile nomination.

Seriously, for a Bush nominee to be voted down, I think he/she'd have to make a major gaffe, be involved in a major scandal, or be Robert Bork.

And if he is, I'll have a lot more time for studying on my hands.

I disagree with Scalia on virtually every major case of the past 5 years but I certainly wouldn't presume to know more about Constitutional Law than he does.

well, W could end up greatly disappointing the social conservatives if Roberts upholds Roe.  After all, Roberts is the W proclaimed most brilliant and qualified legal mind in the country.  If he agrees with Roe and Casey, then Scalia and Thomas and Rehnquist really are a bunch of idelogical kooks.  How can any conservatives keep pressing for Roe to be overturned when W's "golden boy" agrees with it.

This is a very big play that Bush is making, and I hope he and the GOP are prepared if the flop and the river don't come down as the base expects

I think Brown is the only one who is inflammatory enough to be filibustered, the deal not withstanding.

I think Owen would go through although it would be close and the G of 14 would get together to talk about it long enough for McCain, DeWine, and Graham to say they would break the filibuster.

If DeWine pledges to let the Dems filibuster Owen, then he's done.

The Dems have been mulling over for weeks, and quite publicly so, how they should vote on Roberts once it became apparent that they wouldn't be able to hold up or block his confirmation. None of their considerations included thoughts that Roberts was actually qualified for the CJ spot. The two options were (1) vote against Roberts to send a message that they could block the next nominee, or (2) vote for Roberts to given credibility to block the next nominee. These choices were geared towards the next nominee because replacing O'Connor with an actual judicial conservative DOES change things on the Court, whereas Roberts for Rehnquist does little to shift the balance.

Leahy's choice shows which one of the choices is winning out among the Dem leadership. But don't be fooled. He gave plenty of reasons why he didn't like Roberts but is voting for him anyway. What gives, then? Leahy thinks Roberts is too conservative and thus unqualified for the Court, but is willing to "lose the battle to win the war." I.e., this vote isn't about Roberts, its about O'Connor replacement and the pre-determined strategy that anyone to the right of Larry Tribe will get fillibustered.

the flip side is true as well. Bush would be in a very weakened position for a 2nd or 3rd nominee and would be forced into picking a "centrist" that could pass muster in the Senate. If Bush can't get a nominee through the GOP-controlled Senate, then he would look like the jerk for sending up nominees that even Republican's don't like. That's no good. That is how we got Justice Kennedy after Bork and Ginsburg were rejected (though the Dems controlled things back then). We don't want that again. No more Kennedys!

The Dems' votes on Roberts are not about Roberts. They know they've lost that battle. Those votes, like Leahy's, are about positioning themselves to block the next nominee, period. They've been telling us this is their thinking for weeks. Thus, it shouldn't come as a surprise that their votes are based on partisan political considerations and the next battle, rather than the nominee's actual qualifications.  

or the emanations. I couldn't tell you which one, none of my copies contain either one.

if people couldn't see what he was doing. Leahy has badmouthed Roberts from the get-go. His vote is phony and should be seen as such.

...is that she's just not that impressive.  Her judicial writings are average and, frankly, don't even provide real grist for predicting that she'll be a reliable originalist or vote to overturn Roe.  I think the only thing she's got going for her is that Bush and Rove personally like her so much--which counts for a lot with this White House.

The more I think about it, the more I believe this "sacrificial lamb" business is bull.  This Administration (and any Administration, for that matter) fears only one thing more than installing a judge on the Court who ultimately disappoints: a loss.  If a Bush nominee goes down in flames because of Republican defections, that's the end of his Administration.  Goodbye Social Security reform, tax reform, Katrina policy, maybe even Iraq policy.  Bush can afford to alienate his base and lose in 2006 because he ain't up for reelection again.  But if he doesn't want to be an early lame duck, he can't afford a loss on such a high profile fight as a Supreme Court pick.

That's not to say he won't pick a very conservative nominee for the O'Connor seat.  It just ain't gonna be any sacrifice; it'll be to win.

Which Senators have been making such public statements reflecting on their voting strategy?

The fact that Leahy gave plenty of reasons why he doesn't like Roberts but then voted for him anyway seems very similar to the Republican senators perspectives on Breyer and Ginsburg.

Sometimes y'all don't make any sense.  You assert, "No matter who we nominate Dems are going to vote against them."  Then there's a nomineee who is apparently so good no reasonable person would vote against them.  Then the Dems vote for him.  Yet, somehow this is proof that the Democrats are even more devious than you original thought rather than that your initial assumption was incorrect.

In reading this thread, it seems that somehow, the fact that well qualified, conservative (but not idealogical) judge like Roberts is going to get confirmed is proof that the next step should be to nominate a hyper-conservative idealogue because either a) the Dems are just going to try to block the next nominee anyway or b) what the Dems do doesn't matter.  It seems like the reasonable conclusion would be that if you nominate another qualified, conservative (but not idealogical) judge like Roberts then that person would be confirmed as well.

But, since you asked, I graduated from Harvard Law with honors myself, I'm a practicing litigator, I follow the Court's decisions pretty closely, and I'm pretty familiar with the issues in Roe and Casey, which have been as extensively ventilated as any issue ever to come before the Court.  So, I doubt very much that Roberts would come up with something I'm not familiar with.

but some cost more and some cost less.

Brown got 56 votes to the DC Circuit Court. Would she be a major longshot? Yes. But not DOA if she did well enough in the hearings.

Generally, the "sacrificial lamb" strategy appears to be a rather bad one. However, a JRB or Owen could possibly get through.

I think Estrada is the best overall choice, followed by Luttig and then maybe Karen Williams.

His answers to questions suggest that Roberts will effectively reverse Roe v. Wade if the right arguments are made based on equal protection and due process (rather than on there being no right to privacy).

I made the argument last week that the only way Roe gets overturned is by way of Equal Protection and Due Process, not by the elimination of the Right to Privacy.

the only way Roe gets overturned is by way of Equal Protection and Due Process

This is a new line of argument to me.  Please explain.

Thanks -

His vote is phony and should be seen as such

Talk is cheap, and is not infrequently phony.  A vote, however, seems like put up or shut up time to me.  Votes are like money -- they actually make things happen, and you can only spend them one way.

How would you interpret a "yes" vote for Roberts from Leahy as "phony"?

Thanks -

You're counting all 55 Republican votes for any conservative candidate, but you have to remember Specter, Hagel and several other RINOs wouldn't think twice about voting against a candidate who openly opposed Roe.

I think Janice Rogers Brown could lose the support of several Republicans (and certainly all of the Democrats).

There are still risks even if we do have a solid majority.

fetus as being a living being then it must be given  rights.  The rights it is given must comply with the 14th Amendment.  Aborting the fetus would violate it's equal protection rights.

FTR, I don't think this is an easy row to hedge.  But I believe it is a much easier path for a judge to go down than attacking the Right to Privacy.  

thanks -

We concede the right to privacy, but assert that the question of the humanity of a fetus is a judgment of value (rather than of law) and thus should be dealt with legislatively?

I've stated my opinion about Roe several times.  I think it's time for it to move on.  

What I will find personally amusing is seeing all those people wailing about right to privacy and penumbras and emanations changing their tune about creating opinions when Roe is overturned.

The existence of 2 vacancies at once is somewhat unique, so this situation is a greater opportunity for political considerations to dictate a voting strategy. That would make the current situation unlike the Ginsburg and Breyer nominations, in which the nominees had to stand or fall on their own. Moreoever, the GOP has never made a point of trying to block Democrat SCOTUS nominees (not that there have been that many), even obvious ideologues like Ginsburg, who the GOP let slide on through with little resistance because they didn't view partisanship as a good reason to vote against a nominee, which made them reasonable.

It is evident that the Democrats judicial strategy since 2001 has been to oppose Bush nominees on the grounds that they are too conservative (or "because he is Latino") and "not mainstream" as if Ted Kennedy or Patrick Leahy are. Since Leahy has made his case against Roberts' confirmation he is doing his constituents a disservice by voting for a nominee he otherwise deems unqualified to serve. Since he is voting for a nominee he sees as unfit to serve as CJ, the question is why? Answer: politics.

It has been widely discussed that Democrats have been strategizing on how their votes on the Roberts' nomination assist them with an attempt to block the O'Connor replacement. See here, here, and here.

Anyway, Dick "Pol Pot" Durbin is a Dem senator.

Should they vote against Roberts to remind the White House that they still have enough votes to filibuster if they find the next nominee more of a conservative ideologue than Roberts appears to be?

Or should they vote for Roberts so that they will appear more reasonable and less partisan if they decide to block the second nominee?

"That's a critical part of this conversation," said Sen. Richard J. Durbin (D-Ill.), the Senate's No. 2 Democrat and a committee member. "We understand that this is the first of two vacancies on a court that's so evenly divided that one bad choice ... could have an impact for a long time."

If the number 2 Dem in the Senate is thinking about these things, they all are.

And as "conservative" does not equal "Bush idolater," it should be quite easy. But thanks for the pop psychology.

Problem with this is that Roe (at least as originally conceived) implicitly took this into account by concluding that states have an interest in regulating abortion post-viability.  This wasn't on equal protection grounds, of course, but I'm not sure why you need to reach the question of fetal constitutional rights here.

but the companion Doe decision effectively precluded that interest.  Because of the "health" exception, there really is no effective regulation.  

What I will find personally amusing is seeing all those people wailing about right to privacy and penumbras and emanations changing their tune about creating opinions when Roe is overturned.

I have no idea what you're trying to say here.

if that were the case, then you'd have to count a fetus in census counts.  it'd be a crime to smoke or drink while pregnant, and there'd be a whole host of other issues that would occur if a fetus is given "personhood".

the easiest thing to do is as Scalia, Thomas, White, and Rehnquist have written in their dissents.  There is a right to privacy, but it in now way includes a right to abortion, for the reasons that they listed in their dissents.

for the lack of clarity.  I've had a couple of scotch's this evening while watching my Sox collapse.  

My point is that there are MANY people who speak about "penumbras and emanations" with little understanding of the words, other than thinking that  they equate to Abortion=bad.  And while I do enjoy a good jab at you, Thomas, you were absolutely NOT the person I was referring to in this context.

My argument has been consistent from the get-go.

Now, some folks will argue that there isn't a constitutional right to privacy, at least as defined by Griswold, and I say they're absolutely right. But you start explaining that to the average citizen and they get the idea that you're trying to outlaw condoms, and you lose the battle before effectively beginning.

It's much more effective (and equally valid, legally) to simply point out that this is not the kind of value decision a court should be making - that we as a people ought to have some right to say, as a value judgment, that a fetus (or, for the love of God, some fetuses) are entitled to legal protection.

Truth be told, I think that Roe was necessary AT THE TIME.  Now is the time to have the debate.   Now is the time for Americans to come to an intelligent conclusion.

I suspect you won't like the compromise.  But nobody ever likes a compromise.

Let's pretend for a moment that Leahy was ever genuinely undecided on this issue.  In his statement he cited all sorts of reasons why he shouldn't vote for Roberts that are very similar to reaons why he wouldn't vote for Estrada, Owens, JRB, etc.  

At the time, when they were filibustering, he knew his vote was important both symbolically as the ranking member on Judiciary and to make sure they got the magic 40 to filibuster.

If the documents were so stinking important (which I do not agree with) that he wouldn't allow Estrada to go to an inferior court, then they should arguably be that much more important to allow Roberts to ascend to the Supreme Court.

When you know that the 'yes' vote is definitely going to win, and throw away all your old rationale for voting 'no' so that you can vote 'yes' and be on the winning side, that makes Leahy's vote phony.

From the quote provided.  Your assertion is mostly backed by the musings of the writer and not the quote.  Similarly, all of your other "evidence" amounts to a bunch of prognostication from the blogosphere.

Fundamentally, I think both sides are in a position now in which the President nominates another Justice in the mold of Roberts, that nominee will probably be confirmed.  If he wants to nominate an idealogue, instead, there will be probably be a fight.

that a politician is acting politically?  

Perish the thought.

I fully expect our politicians to behave politically.  It doesn't make their actions, votes, or statements sincere.

I was responding to amos' question as to why Leahy's vote should be construed as being phony.  I'm not disparaging Leahy, just suggesting that he isn't sincerely voting for roberts because he thinks he'll be a good justice, just as part of his strategy for the next nomination.

It's a perfectly legitimate strategy, just one I hope we can defeat.

When you know that the 'yes' vote is definitely going to win, and throw away all your old rationale for voting 'no' so that you can vote 'yes' and be on the winning side, that makes Leahy's vote phony

Thanks for the reply, I see where you're coming from.

Kohl votes for Roberts but says that if he had been replacing O'Connor instead that he would have had a "much harder choice" and that he hopes that "President Bush understands this" as he goes to pick a replacement for O'Connor.

Feingold says nice things about Roberts but basically trys to pigeon hole him.

Feingold says he has voted for some judges as CCA that he would not vote for on the SC.

Feingold takes a shot at JRB by name.

Still can't tell if he's going to vote yes, but seems like he is leaning that way.

I believe focussing on the protection of human life rather than on the limitation of privacy will favor the pro-life position.  

As a conservative, I support as a matter of strong principle "the right to be left alone."  Privacy, defined in these terms, is a fundamental component of liberty.  When Judge Roberts affirmed his belief in the constitutional basis for privacy, I believe he was invoking this concept of liberty.

In addition, in his comments regarding stare decisis and respect for settled law, I believe Judge Roberts was recognizing the right to privacy as defined by Griswold as settled law.

I am not sure why Leon rejects the notion of privacy put forward by Griswold -- I hope he will explain that at some point.  To my mind, there is no conflict between Griswold and another fundamental principle, namely, that the government has the right (and obligation) to limit the liberty of one party in order to protect the life or liberty of another party.

The problem with Roe v. Wade, however, is that it does not recognize abortion as a matter that requires us to balance the interests of one party (the fetus) against the interests of another party (the mother).  Instead, by classifying the fetus as "potential life," Roe v. Wade grants the fetus no independent standing, and makes the only other party having claims in the matter the government itself.  This makes laws limiting access to aborttion a kind of taking.

Strengthening the government's right of taking -- which is what we do when we reject the claim of privacy -- does nothing to correct the fundamental flaw in Roe v. Wade.  The way to address the flaw in Roe v. Wade is to reject the classification of the fetus as "potential life" in favor of the recognition that it is an established "human life."  This puts the government back into the business of limiting liberty in order to protect life.

Thus Roe v. Wade can be effectively overturned in a way that respects settled law.  It does not require us to treat the fetus as a "person" that must be counted in the census, granted property rights, etc.  It simply allows us to grant that, while "personhood" begins at birth, "human life" begins before birth.

At that point, we allow open-ended democracy to address the issues of when human life begins and what value we place on human life.  I believe this  will serve the pro-life position better than a state-by-state debate on the issue of privacy.