On July 1, co-blogger Todd had a very good post offering a quite reasonable prediction: there was going to be a brutal confirmation battle regardless of who Bush nominated to replace O’Connor. Todd wrote:
Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven–the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be “moderate” rather than “conservative”.
The credentials or qualifications of the particular nominee under consideration will be largely beside the point.
If my sense of things is right, though, Todd’s quite reasonable prediction looks like it may turn out to be wrong. It looks like there probably won’t be a brutal confirmation battle over John Roberts, even though Roberts is generally understood to be conservative, and Roberts’ credentials and qualifications are a part of his appeal. Here’s the Washington Post today on the reaction to Roberts’s nomination:
An array of interest groups on the left began mobilizing opposition to Roberts, but reticent Senate Democrats demonstrated little eagerness for an all-out war against him. Some Democratic senators laid the groundwork for a struggle focused on prying loose documents related to Roberts’s career in government and using any resistance by the administration against him. Yet as the day progressed, Democrats seemed increasingly resigned to the notion that they cannot stop his appointment.
The key barometer came from members of the Gang of 14 senators who forged a bipartisan accord in May to avoid a showdown over lower-court appointments. Two Republican members of the group, John McCain (Ariz.) and John W. Warner (Va.), said the Roberts selection would not trigger the “extraordinary circumstances” clause of the agreement that would justify a Democratic filibuster.
;Under Senate rules, a filibuster would be the only procedural way the minority party could stop the nomination. By the end of the day, though, Democrats held out little prospect of a filibuster.
“Everybody ought to cool their jets on this and let the process work,” said Sen. Ben Nelson (Neb.), a Democratic member of the group. “Going in, it looks good” for Roberts, he said.
The question is, what happened? I can think of a bunch of possible reasons why the early signs are pointing away from a brutal battle. Here are two.
First, Roberts is not an unknown quantity in DC, and has not lived in a Republican cocoon. Many Democrats know him and like him, leading to lots of water cooler conversations that resemble this excellent post from Brad Joondeph at Supreme Court Extra. It’s hard to man the battle stations in light of reactions like that.
Second, I suspect that the Rehnquist retirement rumors are helping Roberts. Everyone is assuming that within the next year or so Chief Justice Rehqnuist will retire, meaning that the Roberts confirmation is just the first round in a two-round series. I’m not a political strategist, but my sense is that this makes things more complicated for Democrats who may want to oppose Roberts now. If Roberts is on the reasonable end of the likely nominees Bush may name, then it makes some sense to scrutinize Roberts but then let him through, saving energy for the real battle in the next round.
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