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Losing The Swing Vote

This column was written by David Corn.
I was not happy to see the flood of mails with similar subject headings: "O'Connor resigning." From a parochial point of view, a titanic fight over a Supreme Court nomination can really ruin a summer in Washington. (Actually, despite the heat, summers in Washington tend to be quite pleasant; the town slows down, Congress is gone for a good spell, traffic eases, there's plenty of parking, and I can catch up on a year's worth of filing.) But, worse, the expected war over the nominee (whoever it is) will be ugly. It should be ugly. There will be much at stake. But ugly is ugly -- and the Democrats are hardly in a strong position to block George Bush if he makes a not-dumb choice. So the pessimist in me -- which is usually, though not always, right when it comes to predicting the success rate (or lack thereof) rate for the Dems -- fears that after all the ugliness transpires Bush will win out, and the court will veer further to the right. The operative question may be, How much?

Let's be clear about this. During the nuclear option fight, the Democrats were not able to court enough Republicans to prevent Senate Majority Leader Bill Frist from killing the judicial filibuster in an up-or-down vote. It took a tilted-to-the-GOP compromise fashioned by so-called moderates in both parties to thwart (perhaps temporarily) Frist's desire to eliminate the judicial filibuster. Any fight over a Bush nominee to the Supreme Court will eventually have to come down to a with-us-or-against-us vote. That means if Bush nominates someone who the Democrats believe warrants a filibuster, there will be a replay of the nuclear option drama. Only this time it will be more dramatic. The Democrats will threaten a filibuster; Frist will threaten the nuclear option. And those same six or so Republicans whom the Democrats tried (and failed) to win over as a bloc on the nuclear option fight will again be the targets for the Democratic leaders. But what would make these GOPers side with the Democrats this time, especially when the stakes are higher? And, unlike the last episode, these Republicans will not be saved by the bell of a compromise that kicks the can down the road (to mix metaphors). There will be more pressure on them to stick to the party line when a Supreme Court nomination is at stake.

The above analysis is based on the assumption -- or presumption -- that Bush will nominate a jurist whom the Democrats can sell as filibuster-material. If he does not do so, then what will the Dems and the progressive outfits do?

Of course, they will correctly note that replacing O'Connor -- often the key swing vote on the court on crucial matters (such as abortion rights) -- will change the ideological composition of the Supreme Court. Bush's social conservative supporters have been demanding he select someone who will clearly shove the court toward the right. Much has been written and pundited on this topic. Will he go with proven conservative jurist and please the Dobson crowd? Or will he reward Attorney General Alberto Gonzalez, a Bush loyalist who conservatives suspect (for whatever paranoid reasons they have) might turn out to be another David Souter? Is Bush planning a surprise for everyone? (Orrin Hatch?)

In any event, the Democrats and progressives may be placed in the position of having to oppose an experienced jurist whose opinions they do not like on policy grounds. They should fight such a nominee vigorously, and they should be upfront about their reasons. Rather than label that person an "extremist," they ought to argue that the Senate ought not to confirm a nominee who is likely to vote to curtail or eliminate abortion rights, to favor corporate polluters over consumers, or to restrict the federal government's ability to advance social justice. The "extremist" strategy, I fear, is worn out and ineffective. It worked for Robert Bork, thanks to his too-honest writings and wacky beard. But most of the far-right jurists on the list of potential nominees will be able to appear before a Senate committee, not drool, answer questions about their opinions politely, and come across as intelligent and somewhat reasonable people, not extremist monsters plotting to lead America into a Time of Darkness. So progressives, beware, the E-word is probably not your friend.

And there's this to think of: Bush will probably get another Supreme Court pick soon. Perhaps real soon. Chief Justice William Rehnquist may not be there much longer -- by choice or not. One smart move for Bush would be to nominate for the O'Connor vacancy a decidedly conservative person but one who is well-equipped to beat back the expected charges of extremism from the left and who goes on to be confirmed. (Does Gonzalez fit this bill?) Next -- for the Rehnquist opening -- Bush could nominate a true conservative whacko, a Bork II. The Democrats and the left would have a tough time redeploying the extremist attack, even if it were warranted this time. Once more -- from a political perspective -- Democrats and progressives ought to think carefully about how and when they use the charge of extremism. They can only cry "wolf" so many times -- even if Bush unleashes a pack of wolverines.

Will any good come out of this? It may be entertaining, for a while, to watch the tussle that ensues between social conservatives and the White House if Bush does not nominate a person to their liking. That would certainly have reverberations for the Republican presidential race, perhaps causing a more divisive primary contest. Then again, if Bush does decide to elevate Gonzalez -- a fellow who has protected Bush's legal backside numerous times during Bush's political career -- and nominate the first Hispanic-American to the highest court of the land, the Democrats might find it more difficult to stop the drift of Hispanic-American voters toward the GOP.

All in all, this battle is Bush's to lose. A clever move or two on his part could place the Democrats and progressives at serious political disadvantage. They must now devise a damn smart and sophisticated campaign of opposition designed for more than the vacancy of the moment.
By David Corn
Reprinted with permission from The Nation