As just about everyone seems to agree, John Roberts is a shrewd choice to serve as Sandra Day O'Connor's replacement on the Supreme Court. By all accounts, he's a smart man and a clever lawyer, and he has no record of nut-job rhetoric or obviously mistaken decisions. He is, in other words, a tough nominee to oppose.
At the same time, it seems clear that he'll be a bad justice. This basic reality has been obscured in much commentary from liberal legal experts, who've focused on the evidence that things could be worse. And, indeed, they could. There seems to be a reasonable chance that Roberts will turn out to be one of the "good" right-wing justices -- the kind who do bad things in smallish, incremental steps rather than huge, gaping leaps of badness. That's nice, but it's still bad, and Democrats should say so. Indeed, the party ought to recognize that being in the minority comes with a few advantages -- first and foremost among them a release from the obligation to think realistically.
A Senate majority faced with a Supreme Court vacancy and a hostile White House must perform a complicated balancing act. On the one hand, the open seat must be filled. On the other hand, you don't want to let a real stinker through. Back on the first hand, though, the president is entitled to pick someone who reflects his views. Back to the second hand, these are lifetime appointments to a separate and co-equal branch of government. The upshot is that you need to seek a middle-ground compromise outcome. When Ronald Reagan sent Robert Bork to the Senate, senators rightly turned Bork back. Eventually Reagan offered up Anthony Kennedy as a replacement. Kennedy's not a judge the right wing is very pleased with. At the same time, he hasn't racked up a record that liberals like either, as was entirely foreseeable at the time. But blocking Kennedy would have been a nonstarter; he may not have been the best nominee one could reasonably have expected the Reagan administration to put forward, but he was at least in that neighborhood.
Roberts is arguably a similar case. Bush's political coalition is much narrower than Reagan's was. On the whole, this is a good thing. He's not as popular, his re-election wasn't nearly as overwhelming, and so on. But it has bad consequences. Reagan often governed in a libertarian mode, especially with regard to the judiciary, giving us Kennedy and O'Connor on the Supreme Court and libertarian circuit-court judges like Richard Posner, Frank Easterbook, and Alex Kozinski. Whether or not Bush wanted to do something like this, the option simply isn't open to him. His political base, narrowly dependent on social conservatism, simply demands a justice hostile to the privacy jurisprudence the Court has offered over the past several decades. Within those parameters, one could do much worse than Roberts, and blocking him would likely be pointless.
But barring some dramatic revelation, Democrats can't block him anyway. They simply don't have the votes. In terms of influencing policy outcomes, this renders their behavior irrelevant. In terms of political framing, however, it opens up the opportunity for Democrats to simply state their beliefs -- that a Justice Roberts would have a negative impact on the country -- and vote "no."
Roberts' record demonstrates that he would try to restrict Congress' ability to protect endangered species from extinction and suggests that he would imperil efforts to defend the environment in other respects. His scant jurisprudential record makes it unclear exactly how far he'd go in construing the commerce clause so as to strike down popular and effective regulatory schemes aimed at protecting the rights of workers and consumers, but it's clear that he'd do so to at least some extent. His decisions indicate that he'd seek to erect procedural barriers to victims of injustice by using the federal courts to redress injuries in cases where they might well prevail if they could get their cases heard. It indicates that he'd refuse to act as a check on efforts by the executive branch to use its national-security authority in abusing ways. And, despite efforts to muddy the waters on this topic, it makes it pretty clear that he'd try to open the door to the criminalization of abortion and, perhaps, the further restrictions on the right to privacy.
This is bad stuff. Exactly how bad it's hard to say. But there's simply no case from the liberal point of view for believing that Roberts would improve the Court in any respect, and many reasons to think he'd make it worse. Given that he'll probably be confirmed one way or another, there's no need for Democrats to engage in a complicated calculus of trying to discern exactly how bad he'll be or what the alternatives are. That someone will be a bad judge is a perfectly good reason for voting against him -- warning the public that he'll be bad, reiterating that “we told you so” when he does bad things in the future, and trying to take the case to the voters in elections to come.
Mounting a serious effort to block Roberts with a filibuster would only counterproductively focus the country on procedural issues rather than the consequences of confirmation. What's more, it wouldn't work -- the votes just aren't there. At the same time, dozens of Democrats giving Roberts a stamp of approval would be a disaster. It would set the bar that much lower for the next time Bush gets to fill a vacancy, and render Democrats unable to make any political hay out of the matter if the Court's right-wing majority does something outrageous in the future.
Democrats who oppose Roberts will doubtless stand accused of "playing politics." It's an accusation that should be familiar from the Social Security debate, and Democrats should remember above all that playing politics worked. For a minority party coping with an increasingly parliamentarized legislative process in Washington, to play any other game would be foolish. Democrats are not co-equal partners in running the government, and they have no obligation to try to reach compromises or accommodations with the people who, at the moment, have all the power and, therefore, all the responsibility. Instead, their duty is simply to make it clear where they stand -- say what kind of justice they would like to see, explain why Roberts is not that justice, vote "no," and hope to gain some measure of political power before too many more bad things happen.
Matthew Yglesias is a Prospect staff writer.
