Friday, November 04, 2005I have been very pessimistic about the war for the Supreme Court because Democrats (with the help of the press) have steadily undermined the liberal political position on the nomination process. However, I think we may now have a rhetorical opportunity.
During the "nuclear option" debate a few months ago, the Democrats effectively conceded that the ideological extremism of a candidate was no bar to his or her nomination by allowing Owens to be confirmed - who is about as big a psycho as you can imagine. At the same time the gang of 14 killed the filibuster by saying there were some conditions (to be decided by the majority) in which it could not be used, and by making the Democrats frightened to use it for fear that the power would disappear. Finally, we allowed Roberts to get on the bench despite his blank judicial record, meaning that the objective qualifications of a nominee would not be a criteria either. All Bush had to do was select another stealth nominee and he could put any looney he wanted to on the Court.
But in a spectacular example of political incompetence, Bush nominated someone with such weak credentials and such an obscure ideological position that he faced a rebellion on his right. They demanded she be withdrawn and replaced by an obvious, and experienced, Theocon judge. This forced Bush to select Alito.
In the process, the entire conservative rhetorical position on the nomination process has collapsed. They attacked Miers because she wasn't a conservative and wasn't qualified, restoring these arguments to their rightful place in the political debate. Thanks guys.
So now we have a judge who has the credentials of a good nominee to the bench. As Michael Kinsley has argued, all liberals are left with to oppose his nomination is his ideology. And as the New York Times has reported, that is indeed the area that Democrats are focusing on. Some people think this is a bad thing, and in most cases I would agree with them. But not here, and not now.
In previous historical eras, it was probably inappropriate to use ideology as a standard. But there is an exception - when the views held by a nominee are profoundly at odds with the views of the American people. When we say that "ideology shouldn't matter," we are assuming that the ideology we are talking about is a mainstream one. If a nominee is within the American political consensus, then he should be let on - even if he leans a little bit in one direction or the other.
The mistake that the press and a lot of moderates are making is to believe that modern conservatism meets this standard - that it is a respectable political persuasion within the centrist tradition of American political thought. But I have news for you - it's not. Today's right wing is opposed to every advance in social justice and civil liberties made over the last hundred years. They want to repeal the Great Society of the 1960's, the New Deal of the 1930's, the Progressive movement of the 1910's, and the Civil Service Reforms of the 1880's. If the right forthrightly ran on these issue positions, they would receive about 10% of the vote. I hope.
So my position would be that a conservative or liberal judge should be allowed on the bench, but no reactionaries or radicals. Nobody who wants to burn the village in order to save it. Unfortunately today's conservatism has been entirely captured by the extreme reactionary wing of the party. Moderates always have a problem coping with extremist political movements, and this is a classic example.
This is our opportunity - to present to the country exactly how insane the right wing is. The Miers debacle has forced Bush into this position, which he didn't want to be in. Any straight-up political fight over conservative ideology could easily lead to the outright repudiation of the Republican party, something the Theocon pundits don't understand but which Rove & Co. are very aware of. Bush is attempting to retrieve his old strategy by "fuzzing up" Alito's record (see here). We shouldn't let him. We should make this an open debate about what kind of society we want to live in. This may be the last best opportunity we have.
By the way, I am all for this.