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Expectations Versus Realities of the Confirmation Picture:
On July 1, co-blogger Todd had a very good post offering a quite reasonable prediction: there was going to be a brutal confirmation battle regardless of who Bush nominated to replace O'Connor. Todd wrote:
  Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven--the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be "moderate" rather than "conservative".
  The credentials or qualifications of the particular nominee under consideration will be largely beside the point.
  If my sense of things is right, though, Todd's quite reasonable prediction looks like it may turn out to be wrong. It looks like there probably won't be a brutal confirmation battle over John Roberts, even though Roberts is generally understood to be conservative, and Roberts' credentials and qualifications are a part of his appeal. Here's the Washington Post today on the reaction to Roberts's nomination:
  An array of interest groups on the left began mobilizing opposition to Roberts, but reticent Senate Democrats demonstrated little eagerness for an all-out war against him. Some Democratic senators laid the groundwork for a struggle focused on prying loose documents related to Roberts's career in government and using any resistance by the administration against him. Yet as the day progressed, Democrats seemed increasingly resigned to the notion that they cannot stop his appointment.
  The key barometer came from members of the Gang of 14 senators who forged a bipartisan accord in May to avoid a showdown over lower-court appointments. Two Republican members of the group, John McCain (Ariz.) and John W. Warner (Va.), said the Roberts selection would not trigger the "extraordinary circumstances" clause of the agreement that would justify a Democratic filibuster.
  ;Under Senate rules, a filibuster would be the only procedural way the minority party could stop the nomination. By the end of the day, though, Democrats held out little prospect of a filibuster.
  "Everybody ought to cool their jets on this and let the process work," said Sen. Ben Nelson (Neb.), a Democratic member of the group. "Going in, it looks good" for Roberts, he said.
  The question is, what happened? I can think of a bunch of possible reasons why the early signs are pointing away from a brutal battle. Here are two.

  First, Roberts is not an unknown quantity in DC, and has not lived in a Republican cocoon. Many Democrats know him and like him, leading to lots of water cooler conversations that resemble this excellent post from Brad Joondeph at Supreme Court Extra. It's hard to man the battle stations in light of reactions like that.

  Second, I suspect that the Rehnquist retirement rumors are helping Roberts. Everyone is assuming that within the next year or so Chief Justice Rehqnuist will retire, meaning that the Roberts confirmation is just the first round in a two-round series. I'm not a political strategist, but my sense is that this makes things more complicated for Democrats who may want to oppose Roberts now. If Roberts is on the reasonable end of the likely nominees Bush may name, then it makes some sense to scrutinize Roberts but then let him through, saving energy for the real battle in the next round.
Scott Moss (mail) (www):
Good points. The Dems may be not only "saving energy" for a Rehnquist battle, but sending President Bush a message about picking a Rehnquist replacement: if you pick an Edith Jones or Priscilla Owen, we'll give you a hard time; but if you pick someone who's still quite conservative but marginally less a part of the 'movement', then your nominee can glide through. I think that's the most a minority party can hope to accomplish.
7.21.2005 1:50pm
Dem:
I hate to say "I told you so," but I can't resist because so many people blasted me in the comments to TZ's prediction posts.

Dems realize, as the R's did back in 1993, that they are solidly in the minority in the Senate and do not have the votes to block anyone other than a very extreme nominee (or, of course, someone who turns out to have skeletons in their closet.) Given the situation, Dems in the Senate will let someone like Roberts (who is quite conservative, though not perceived as being as far right as many others on the list) through without too much opposition. This is exactly what Hatch did with Breyer and Gisburg who, while liberal (G moreso than B), are more moderate than Brennan/Marshall style liberals. Sure, Dems will ask Roberts some tough quiestions, request a lot of documents, etc. but at the end of the day, unless the questions or documents reveal something unexpected, Roberts will be confirmed without much Senate opposition.
7.21.2005 2:08pm
erp (mail):
Orin, Did you read this last sentence? If he holds a very constrained view of the role of government in modern society, or of the fundamental liberties protected by the Constitution, his confirmation could turn out quite badly for the country.

Same old, same old.

Roberts will be a great justice if he holds these truths to be self-evident, that we on the Left know what's good for the world and we'll tell you where in Constitution you will be able to find the word or phrase that we have determined when read right to left and inverted will confirm our interpretation of what the framers really meant.

You have problems with that? You can't be confirmed.
7.21.2005 2:16pm
David Kravitz (mail) (www):
I think Dem is quite right. I also think that everyone who was predicting a huge battle over whoever Bush nominated has been wrong all along. The Dems in the Senate are not stupid (Harry Reid certainly isn't). They know how to pick their battles intelligently, and picking a huge fight over John Roberts (or over several others on Bush's short list) would not be intelligent. The press, of course, would like nothing more than a huge confirmation battle, which is why they are giving way too much attention to the MoveOn crowd which has decided for some reason that they can persuade Bush to nominate someone more "moderate" if Roberts is rejected. The Senate Dems know better. Roberts is the best they can reasonably expect to do. He'll be confirmed in a walk.
7.21.2005 2:18pm
anonymous coward:
Don't be surprised if the Dems manufacture a controversy and mostly vote against Roberts (perhaps over refusing to respond to detailed questioning). If the Dems can't dish out any pain over Roberts, they'll be implicitly admitting that they can't hope to stop a more conservative nominee either. Of course they are unlikely to fillibuster Roberts in any event.
7.21.2005 2:33pm
Steve:
The predictions of an inevitable bloody battle mostly came from people on the Right who wanted to further the meme that "Democrats will oppose anyone." It's silly - 55 Republicans made up their minds the instant the nominee was announced - but whatever. Yes, news flash, there are vocal interest groups on both sides, and politicians from both sides need to pay them a certain amount of lip service. But at the end of the day, barring some bizarre revelation, everyone knows this a solid pick. For all we know, Leahy may have even given the White House a positive signal in advance.
7.21.2005 2:37pm
Craig Oren (mail):
What happened, I think, was that, as usual, the Bush Administration outthought the opposition by nominating (gasp!) an excellent choice. No matter how much anti-confirmation money is out there, a strong candidate will win every time. Roberts has an outstanding record and an excellent demeanor. Unless there's something in the closet, he's the kind of nominee who sails through.

This is actually a comforting lesson about government: good substance is the best way to prevail against special-interest opposition, no matter where it comes from.
7.21.2005 2:53pm
Mark:
It is way too early to make any predictions. Roberts is a difficult candidate to beat. But the same was said of Estrada, who--back in 2001--was immediately hailed in Roberts like terms (great background, impeccable credentials) etc. Even at the verge of his filibuster, no one believed it would happen.

The world of judicial nominations is unreal and we are in uncharted territory. Anything can happen
7.21.2005 2:57pm
frankcross (mail):
There's a forthcoming article in the Florida State Law Review by Lee Epstein, Jeff Segal and others that empirically studies the degree to which perceived qualifications mattered in Supreme Court nominations. They found that they distinctly matter and that a candidate regarded as highly qualified is virtually certain to be confirmed and get plenty of votes from the opposite party.
7.21.2005 3:18pm
David Kravitz (mail) (www):
the Bush Administration outthought the opposition by nominating (gasp!) an excellent choice

Well, depends what you mean by "opposition." If you mean MoveOn, sure, but that's giving MoveOn an awful lot of credit. If you mean Democrats in general, then I beg to differ. Isn't it just as plausible to say that Bush is now at the weakest point of his entire presidency, what with Rovegate, Iraq, and Social Security all festering, and he just didn't have either the will or the way to get a more extreme nominee that would have made the "base" happier confirmed? (Btw, I don't buy the Dobsonites' professions of glee. They're making a good show of it, but surely there are lots of candidates they would have preferred.)
7.21.2005 4:54pm
RPS (mail):

Don't be surprised if the Dems manufacture a controversy and mostly vote against Roberts (perhaps over refusing to respond to detailed questioning). If the Dems can't dish out any pain over Roberts, they'll be implicitly admitting that they can't hope to stop a more conservative nominee either. Of course they are unlikely to fillibuster Roberts in any event.


I tend not to see it that way. By not dishing out pain to Roberts, I don't think the D's are admitting anything, implicitly or otherwise. If and when Bush nominates a more conservatice nominee, then the D's can spin their support of Roberts as showing how reasonable they are - "We are not obstructionists. Look, we voted for Roberts. But [current nominee] is going too far."

I only wonder if there is a female or minority version of Roberts out there.
7.21.2005 6:08pm
dick thompson (mail):
It seems to me that all the talk about how difficult the dems would make it came from the dems (Schumer and company as well as the MoveOn and NARAL and People for an American Way). Very little came from the reps other than to assume that the dems talking were the ones who would try to cause problems. Schumer and Kennedy even came out with the types of questions they would ask and that they would ask for all those memos that they really don't need to see. If they don't, then it is a win/win for Bush. If they do, it is a win for Bush and a huge loss for them because it looks as if Roberts is just so good a nominee that he should sail right on through.
7.21.2005 8:02pm
JohnO (mail):

If and when Bush nominates a more conservatice nominee, then the D's can spin their support of Roberts as showing how reasonable they are - "We are not obstructionists. Look, we voted for Roberts. But [current nominee] is going too far."

Exactly. The Roberts nomination creates something of a pickle for the Dems if they aren't disciplined, and an opportunity if they are disciplined. Absent some really bad stuff coming out, the Dems can't go to war on Roberts because they'll lose credibility for the next nominee. I thought the GOP used NOW's quote about Souter to good effect in the past few days ("If David Souter is appointed to the Supreme Court, WOMEN WILL DIE."). If the Dems went to war on Roberts, the administration would go more conservative on the next opening and say that the Dems have no credibility in opposing the nominee because "look what they did to John Roberts. They'll oppose anyone no matter how qualified."

On the other hand, if the Dems hold their fire (they can vote no, but they can't filibuster or make too big a stink), they can use that to advantage next time by saying if we had gotten a nominee like Roberts we wouldn't have been obstructionist," even if the next nominee in actuality is no more conservative or ideological than Roberts.
7.21.2005 8:28pm
Challenge:
I think it's wrong to speak of Roberts as a "moderate" when so little is known about his political or even legal philosophy. It's true there is very little to make an issue out of, but we just don't know if he's a Scalia or a Souter (my intuition tells me more of a Rhenquist). He's a question mark, which I think in light of his excellent career and accomplishments, is a bonus for the confirmation hearings. But "moderate?" I just don't think the term is appropriate. Unknown, yes.
7.22.2005 6:28am