Political Hay

The Fight Next Time

With John Roberts safely in, the fun begins in earnest to confirm Sandra Day O'Connor's replacement.

By 9.29.05

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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.

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David Hogberg is a senior fellow at the National Center for Public Policy Research.  Follow David Hogberg on Twitter.