Saturday, September 24, 2005

Ok, I'm Convinced

I have struggled recently between two arguments on the Roberts nomination that both make sense to me, I had come to tell people that I supported the "politics of contrast" idea fronted by Armando at DailyKos, while I still felt that there was some validity to the "keep our powder dry" argument reserving our outrage for when an outrageous replacement for O'Conner that will make a difference is nominated. I have now been totally convinced by an argument, one that appealed ultimately to my lack of conviction about either of the other ideas. In short, they are both correct to some extent.
There's an epic performance in progress on the stage of US history, but we're not actors in this drama. We're not even in the intended audience. Neither are the media, the interest groups, the voting publics of 2006 or 2008 (with limited exceptions) ... nor (with very limited exceptions) are most members of the Senate, of either party.

Hint: the people who should care already do care. The people who need to "get it" already get it. Why don't our leaders pull out all the stops against Roberts? Because they care, and because they get it.

The thigh bone's connected to the knee bone, the knee bone's connected to the shin bone, and there is intelligence to this strategic design. It's been inaptly described as "keeping our powder dry" ... but it's really a matter of signal contrast.

Begin with Chuck Schumer's "devil's bargain" (my paraphrase):
What would you have paid the Devil, at the start of his presidency, for a guarantee that Bush would leave SCOTUS no worse than he found it? A lot, probably. So far, Roberts is no worse than Rehnquist ... just younger, plausibly more circumspect, and a stronger counter to Scalia's dominant intellect.

And O'Connor's 5-4 swing seat is still in play.

The next nominee -- whoever he or she may be -- will receive every Republican vote. Our only stopper is the filibuster.

Democrats start with 38 seats outside the anti-nuclear 7+7 Our Gang Comity compact. To sustain a filibuster we must hold all 38 votes, and then find a way to get to 41. (Or 42 for a margin of safety, and to forestall unbearable pressure on #41.)

We've got nothing unless the Gang of Fourteen breaks ranks.

They'll need strong reasons -- "extraordinary circumstances", and then some -- to vote against cloture. In some cases, this vote will run counter to their personal and principled (conservative, pro-life or institutional) convictions.

To move these votes, leadership and the caucus majority must emphasize the intensity of their principled opposition ... and by extension, the intensity of repercussions within the caucus, and in the party activist core, and in a post-2006 Senate.

If 35 D's vote 'Nay' on Roberts, there's no space to the left for a contrasting message on (say) a Janice Rogers Brown. No contrast, no message. No message, no impact.

But 17 Nay's on Roberts would define a baseline from which 37 Nay's would project a contrasting signal to the attention of Democrats #38, 39, 40, 41, and 42.

If 30-plus Dem's vote against Roberts, they will win our approval ... but it means we've already conceded the next round.

If we sell out to the bare walls now, the other side knows exactly what we've got ... and we lose both the potential for contrast and the marginal advantage of strategic ambiguity. That's what we've got. That's ALL we've got, and if we give it up, there's no burden of guesswork on the other side. Done deal, on their terms.

Next time, we could still fail to deter the worst possible nomination. We could fail to mount and sustain a filibuster. We could be outgunned in a Nuclear Option showdown.

But at least we've dragged the showdown down the calendar ...

o it's high drama, with possible surprise endings. We're not in the show. We're not in the intended audience. And -- Shhhhhh!!! -- the curtain is about to go up on Act II.

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