THE BLOG

Chief Justice Roberts: What Went Wrong

I share David Sirota's disgust with how John Roberts is going to be made Chief Justice without even a fight. But while Sirota only blames the Dem consultant class, the fact is the blame should be spread far and wide.

Everyone failed in developing and executing a strategy to stop Roberts: Senate Dems, Beltway Dem advisers, civil rights groups, liberal pundits and the liberal blogosphere.

With the next Court nomination just around the corner, we better understand what went wrong so we don't repeat the same mistakes.

The failure happened in three stages:

1. The First 24 Hours

The lack of a strategy in this critical time period was the first and biggest mistake.

The media will define the nominee in this period as a “strong” pick or a “controversial” pick. And barring the implausible scenario of Bush picking a proven impartial judge, the challenge on all of us is to define the pick as controversial.

Bush has two basic routes: an explicit conservative with a paper trail, or a stealth conservative with little paper trial. Obviously, it’s easier to paint someone with a right-wing paper trail as controversial. But that doesn’t excuse us from having a strategy for when there is a nominee with little paper trail, especially since that was and is a very live option.

The proper Day 1 message in that scenario is “No Blank Slates.” Without a clear record of impartiality and respect for basic rights, you have not earned a free pass to a lifetime appointment.

However, such a message now will be even harder to execute, because the Senate will soon confirm a Chief Justice who was very much a blank slate when he was first nominated (and only slightly less so today). And if the next blank slate is a person of color, attacking that person while passing on Roberts will be quickly and gleefully branded by the Right as racism from the Left.

After Roberts hands down a few right-wing rulings, Dems will be able to point to Roberts and Clarence Thomas as nominees that gave misleading testimony, thereby bolstering the case against blank slates. But that’s no help today. What can be done now?

Activist leaders like Alliance for Justice, People for the American Way and Leadership Conference on Civil Rights need to disseminate whatever info they have on possible nominees to the mainstream media and to the blogosphere, in advance of the nomination.

(For example, former Deputy AG Larry Thompson’s slate is pretty blank, but everyone should know he was both a Robert Bork and Clarence Thomas backer, that he opposed the recent Court ruling upholding affirmative action, and that he signed off on the rendition of torture victim Maher Arar to Syria.)

That way, assuming Bush doesn’t offer up a total surprise pick, everyone will know as soon as the name is announced that there’s something fishy about him or her, and the notion that the pick is controversial will be easier to argue.

2. Before The Hearings

Leading civil rights groups like AFJ and PFAW felt compelled to wait until the days just before the hearings to formally announce opposition, thinking that waiting several weeks would inoculate them from seeming knee-jerk.

It didn’t. They got called knee-jerk anyway. All it did was waste precious time in the run-up to the hearing to define Roberts.

By the time the opposition was announced, after being quiet for so long, the activists had rendered themselves impotent, and the announcements did nothing to build momentum. Even after the announcements, the civil rights groups refused to mount an ad campaign, signaling to the media that there would be no real fight, creating the perception that Roberts was a done deal.

It is more crass for Senators to formally oppose before they have their hearings. But Senators should have done more to place the burden on Roberts to prove his impartiality.

Senators should be articulating why the nomination matters, how it would affect people’s lives, in areas of personal freedom, workplace fairness, consumer rights and environmental protections.

And Senators, in conjunction with activists, should be laying out criteria along those lines that any nominee must meet to earn the public’s support.

Instead, the Senate Dems mostly clammed up, simply saying they would wait for the hearings. That is essentially a strategy based on hopes that the nominee might slip up. Clearly in the case of Roberts, he was a nominee picked precisely because he wouldn’t slip up. Therefore, saving all confrontation for the hearings was a strategy destined to fail.

Finally, opportunities to challenge a nominee’s credibility must be exploited.

The game for right-wing nominees is to give empty, feel-good, non-ideological (or even liberal-sounding) testimony. So if you don’t give the public and the media a reason to doubt the nominee’s credibility in advance, the nominee will easily generate misleading headlines like "Roberts Supports Right To Privacy."

With a blank slate, there may not always be an opening to challenge a nominee’s credibility in advance, but Roberts provided some openings that were not exploited (such as his dishonesty about his Federalist Society membership.)

3. The Hearings

Senators have yet to realize how idiotic they can look like with the klieg lights on.

Dems are so afraid of asking pointed questions because they don't want to look political during this supposed “dignified” process, but it’s the long, boring, self-serving speeches during Q&A sessions that look political.

More importantly, long speeches don’t make the evening news. Dramatic exchanges do. And if you don’t make news, you’re not communicating to the public what is wrong with the nominee, and you’re not rallying public opinion, the essential ingredient for sustaining a filibuster.

Dems should ditch the entire “opening statements” business on the first day of hearings, which are a total waste of time. (If Senate tradition does not oblige, then keep them to a minute, and get to the questioning. No one is listening.)

Once the questioning begins, actually question. Don’t ramble.

Question succinctly and aggressively.

Question in a way that the public will understand what you’re talking about. Don’t delve into arcane legalese.

And follow-up aggressively. Do not passively give the nominee the last word time and time again when he or she is clearly bullshitting everyone.

***

We can't be shocked that so many Senate Dems will vote for Roberts, because so little was done by liberal activists, pundits, bloggers, and politicians to create the conditions for a strong opposition.

If that doesn't change the next time around, we will badly lose again. And Dubya, while at 40%, approval, will have succeeded in further moving the Court to the Right, possibly for the next generation.


A different version of this post is at LiberalOasis