Bush has tapped Roberts as Rehnquist's successor, making his hearings a combined affair. Senators, now, have to evaluate his acceptability as a) a Justice on the Supreme Court and b) the new head and leader of the Court, probably for then next 4 decades. This is a very, very savvy move by Bush. If the Senate had confirmed Roberts but not made him chief, Stevens, a liberal, would've become acting chief by virtue of seniority, and when the session opened, unless a Chief could be hustled onto the Court, liberals would have held as many seats as conservatives and they'd be setting the agenda. Roberts, too, is young, he'll have the power to reshape and direct the Court for four or five decades -- that's some fucking appointment for a guy who's only been a judge for two years!
Democrats, smartly, are pounding home the fact that Roberts is Rehnquist's replacement, and O'Connor should thus have her seat filled by a candidate exemplifying her imagined virtues: moderation, pragmatism, occasional liberalism. But what they say won't be nearly so important as what they do. If they lay down for Roberts, given the gravity and meaning of his appointment, Bush will be freed to nominate whomever he wants. With Roberts proven broadly confirmable, Bush can go still farther to his right, sacrificing comity for extremism. We don't want that. Roberts, almost certainly, will be confirmed. But he should face tough opposition and be proven on the outskirts of what Democrats view as acceptable. Bush will have him, but we expect someone more moderate next time. And if we make the Roberts confirmation a rough, draining affair -- we might well get someone better, as Republicans will want 2006 to be about tax reform, not a Court battle showing them social regressives.
Also, Democrats need to seriously consider Sam Rosenfeld's oft-made point about losing well. Blocking Roberts will take a dues ex machina figure -- we're talking his crack dealer stepping onto the floor of the Senate with a scrapbook full of fun times they had while free basing. But even if we let him through, the hearings offer a lot of press coverage and a lot of time to make the case for a Democratic judiciary, to attack the Republican vision of jurisprudence, and generally argue for our hoped-for world rather than theirs. Roberts can ascend to the bench while we win the fight -- and if that's the outcome, his follow-up will be moderate, as the Republican majority won't want another bruising, losing battle before the midterms.
That means choosing our ideological battles. The Roberts nomination isn't just about abortion and gay marriage -- indeed, it's not even mostly about that. The Roberts nomination is about equal pay for equal work (does he believe in it?), it's about worker regulations and the judiciary favoring corporations above employees. It's about the New Deal and The Great Society, Medicare and Social Security, anti-pollution regulations and Clean Air Acts. It is, in short, about the legacy and future of progressivism vs. the revival and trajectory of Gilded Age conservatism. And if Democratic senators, because they get more blast faxes from NARAL and HRC, let that playing ground narrow, they'll be far poorer for it.
