Roberts et al., and getting past '68

As the Roberts nomination goes to the Senate floor, I want to express my thoughts on him and the Democratic Senators votes, generally meaningless as they are, on it. First, though, I’d like to suggest a little different perspective from which to view the nomination and votes upon it, then we’ll tackle the more interesting question of what is next.

One of the basic premises here is that American politics is stuck in a rut, one that basically dates from 1968. Like the movie Groundhog Day, in which the main character keeps living the same day over and over until he finally gets it right, our national election stage since then has been mostly variations on the theme of 1968’s election-that-never-happened, Richard Nixon vs. Robert F. Kennedy. I think we have basically tried all the different combinations (with and without the 3rd-party populist factor, as sometimes played by Ross Perot), or enough of them anyway, and the 2004 election was the closest yet we’ve gotten to the originally intended matchup. It helped that we had the new Vietnam, i.e., Iraq, in the last election, to help crystallize the foreign policy component, but it was basically a rehash of the same old issues: abortion, minority rights, deficit spending, us vs. them internationally, executive power, pork-for-whom, propping up our declining industries, law 'n' order, etc.

My view is that the Republicans basically win this fight every time, in the absence of current, publicly-exposed misuse of power or a strong third-party candidate who can draw off populist independent voters (we had the misuse in the elections of 1972, 1984, 2004, but it hadn’t reached the level of public awareness due to cover-ups). The Republicans utilize the now-all-too-familiar tactics and strategies: the Southern strategy, wrapping themselves in the flag, exploiting Democratic divisions, challenging their patriotism, etc. It’s tiresome, and the public dissatisfaction with these alleged issues—-most of which are entirely static at this point—-is frequently evidenced.

We tried to get out of the rut, I’d suggest, in the post-Cold War/pre-9/11 period from 1989-2001. Looking back now, the whole era had a sense of unreality about it, and there weren’t too many new issues. (What were they, anyway? Clinton scored one success in taking welfare out of the Republicans’ column, and made some inroads on the tax-and-spend, but failed to change the basic game, due to his own weaknesses.) We were just starting to look around and think about things differently—Gore tried-- then BLAM: The GWOT has replaced the Cold War, and we’re back in the rut.

It’s time for some new issues, and there's some signs of movement undercover. Actually, the Bushite neocon point of view on championing democracy may actually signal some new thinking in the neglected area of America’s role in the world and its mission. Clearly, “the energy crisis”—that pseudo-issue dating back to the ‘70’s or so—has taken a more critical, meaningful turn calling for new policies and new thinking (though that certainly wasn’t reflected in the recent energy or transportation bills). Global warming is now getting on everybody’s radar, whether or not it has any direct relation to the rash of intense hurricanes of this year and the last. I see some movement on the critical issue of electoral reform. A glimmer of some consideration of modification of the current transnational organizational void (particularly in the face of the collapse of the EU constitution). Thoughts about the huge fiscal mess we are leaving to our descendants (though the Social Security privatization wasn’t the answer).

Now, back to the Supreme Court. I take a different view of John Roberts from many, which is that, diffidence notwithstanding, we pretty much know what he’s going to do as Chief Justice. It’s Rehnquist Redux. He will be a reliable vote for the Republican platform, circa 1968. Unlike Scalia and Roberts, but like Rehnquist, he will avoid extreme, injudicious statements, but he will support federal government expansion, oppose expansion of individual liberties, cautiously cut back on the right to abortion, accept disenfranchisement of the disadvantaged as long as it’s not too blatant, etc. He’s no bomb-thrower for the radical right, but a status quo ante kind of guy.

Fine—this is a Republican victory, but one that I suppose they earned in the ’04 election debacle, and one that changes absolutely nothing. I objected to the notion that he was a proper replacement for O’Connor from the beginning, noticing that Rehnquist was due to depart, and suggesting he was really the replacement for him all along. Events have borne that out. The Democratic votes are lining up pretty predictably along red/blue lines: swing-state senators are seeking to solidify their moderate image, solid blue state Senators to buff up their liberal credentials. Nothing too exciting here; more entrenchment in the rut. That deal is done.

The next nomination will generally be viewed through a very microscopic measure, namely, the number of degrees/minutes/seconds that the nominee varies, in the classic, outdated liberal-conservative spectrum, from the O’Connor Standard azimuth. I suspect that the Bushites would love to nominate another Roberts but will be unable to find someone able to put on as convincing a show as he did. This next nominee will not get through by dodging and weaving, he/she will have to get specific and the answers will always be compared to O’Connor’s positions. The Democrats will not let things proceed unless they get answers this time, while the Republican Right is spoiling for a fight—they want to revisit the Gang of 14 moderates’ coup, and they are grumbling that they will not fall into line if Bush names a moderate.

I don’t “mis-underestimate” the Bushites on this one. They did a great job coming up with Roberts for the last nomination, and they will consider carefully this time as well. I just don’t think they will be able to avoid a fight. If we take Alberto Gonzales, for example—a candidate with pretty high probability for selection since he’s a Hispanic, a Bush loyalist; he’d be almost a sure bet if he were female—he apparently would stir up resentment and resistance from the Right, as well as harsh questioning from the Democrats on his policy memos supporting detention, torture-like methods, etc. I read on a right-wing blog he’s the only candidate the Democrats wouldn’t filibuster—that’s probably because he’s one that they can get the votes to defeat!

Clearly, the Democrats have positioned themselves to filibuster either an unambiguous right-winger or an ambiguous one. The chances Bush will name a proven moderate are very slim. It’s going to be Nuclear Option time.

I’m looking forward to it. A rightist judge, however they get him confirmed, will shake up the status quo and produce a reaction of some kind. I think the fireworks will alert people to the stagnation in American political thought, which will be reflected, post-Apocalypse, in the stagnation in the Congress which the Democrats will impose. I think there’s a good chance that the violation of the Senate rules which the Nuke requires will end up in the Supreme Court itself—Roberts won’t have to recuse himself, though the nominee will (or would). That decision could be like Gore v. Bush in its significance, but moreso in that it will lead to some change from the current stasis. Unless, of course, it's a 4-4, in which case it will highlight the stasis itself.

At the end of the day, progressives will ask ourselves whether just another O’Connor is really such a good standard. It’s time to turn the clock forward.