Barring a last minute scandalous revelation of epic proportions,
John Roberts will be appointed to the Supreme Court today. This is
as good a time as any to reflect on what went right, and what we
can expect next time.
But first, give credit where credit is due: Bush’s decisions to
nominate Roberts to the bench and later nominate him to be Chief
Justice were slam-dunks. In Roberts, Bush picked a nominee who is
smart, competent, and likable — a tough combination to beat.
Nominating him to be Chief Justice was equally brilliant. By the
time Chief Justice Rehnquist (RIP) passed away, Roberts had been
vetted by the media and withstood the barrage from left-wing
advocacy groups. Thus, there was nothing likely to emerge from
Roberts’ past to derail his nomination. Best of all, Bush avoided
the extra fight he would have had to endure had he elevated one of
the sitting Justices to the top spot.
The problem is that it is difficult to pull a rabbit out of the
hat twice. Thus, here are some factors to bear in mind for the next
fight:
No NARAL Ad: The absurd NARAL advertisement
trying to tie Roberts to abortion bombers was a Godsend for
Roberts’ supporters. We can’t expect to get that lucky a second
time. It would be nice if we did, but don’t count on it to win the
fight.
Pat Leahy Will Be the Dems’ Point Man: One has
to hand it to Leahy — supporting Roberts was tactically shrewd.
Roberts was going to be confirmed anyway, and by supporting him
Leahy makes himself look reasonable. That will only enhance his
standing should he decide to oppose the next nominee. Every press
mention of Leahy will begin, “Senator Pat Leahy, who supported John
Roberts…” Yes, it will make you want to gag pretty quick. But
there is nothing we can do about it.
Use Race, But Not the Race Card: There are two
things conservatives should be willing to do if Bush appoints a
minority. Conservatives should be willing to use it as a talking
point, such as saying that someone is the first Hispanic nominee
(I’m thinking Garza, not Gonzales.) We should also be willing to
challenge the scourge of identity politics; that is, fire back
anytime the left claims that a nominee isn’t sufficiently Hispanic
or black because he is a conservative. To fight this, it is best to
say that the left wants to cut off independent thought, to box
minorities into one way of thinking. What we should not do is
mirror the left-wing tactic of trying shut off debate by charging
“racism” in response to criticism of the nominee (unless, of
course, the criticism is racist). As conservatives we must hold
ourselves to higher standards.
Use Gender, But Not the Gender Card: In above
paragraph, insert “gender” for “race.”
Pledge of Allegiance: Every few years, it
seems, some court feels compelled to rule that “under God” in the
Pledge of Allegiance is unconstitutional. I’ve never understood why
conservatives are not more aggressive in using this in judicial
battles. Saying, “the types of judges that the opponents of (Insert
Nominee’s Name here) support are the ones that say the ‘under God’
is unconstitutional,” seems to me to be a great way to put the
other side on the defensive. We should use it.
Unheralded Hero: Progress for America’s efforts
to run advertisements in support of Roberts was one of the high
points of the confirmation process. We’ll need more of those from
more groups this time round. They should consider targeting some of
the Democrats in swing or red states, like Ben Nelson, Bill Nelson,
Kent Conrad, Mark Dayton, and Debbie Stabenow. But if that doesn’t
work…
…Get Ready For The Constitutional Option:
Chances are better than even that the next nominee will face a
Democratic filibuster. Just remember, it is the “Constitutional
Option,” not the “Nuclear Option.”
Unfortunately, the judicial fight will be much tougher this
time. But we can and must win. Getting the courts under control
depends on it.
