Ask Auntie Pinko

September 1, 2005
By Auntie Pinko

Dear Auntie Pinko,

How much of a disaster will it be to have John Roberts on the Supreme Court? What should Democrats do about it? Some people are saying we could shoot ourselves in the foot if we oppose Roberts when there are so many worse candidates. My father-in-law (a conservative Democrat) says that we'll only make ourselves look bad and turn off the majority of moderate Americans if we're too strident.

On the other hand, my wife (who works at a Family Violence Resource Center) believes that Roberts will provide a reliable majority for those trying to deny women protection from discrimination, the freedom to make their own decisions regarding reproduction, and the right to privacy. From what I've heard about his attitude toward women, she's right. What can we do?

Robert
New Canaan, CT

Dear Robert,

Both your father-in-law and your wife make good points. Mr. Roberts' available record demonstrates strong and consistent support for conservative priorities, and a puzzlingly misogynistic streak to his personality. (Dr. Freud would doubtless have many interesting speculations to offer.) But the lack of a judicial track record, his social skills, and his intelligence and knowledge of the law combine to undercut many potential opposition tactics.

To some extent, the issue of "what Democrats can do" is a moot point. There is a sufficient majority of Republicans and conservative Democrats to approve Mr. Roberts' nomination, and there appears to be little doubt that (absent some shocking revelation of either demonstrable malfeasance or hitherto unsuspected liberal sympathies on his part) he will be confirmed. If Auntie Pinko were a Senator, the course of action I would pursue would be to simply state that what I know of his record reflects Constitutional biases harmful to the well-being of the Republic and its citizens, and therefore I would vote against his confirmation.

There has been enough coverage of the little information available on Mr. Roberts' record to make it abundantly clear why anyone concerned with protecting the rights of Americans who are not white, male, and/or corporations might reasonably oppose his appointment. And, as with most political and ideological questions nowadays, it is unlikely that anyone's mind will be changed by repetitive arguments, so I would also refrain from being drawn into such discussions.

What I would not do would be to calculate how to get "mileage" out of this issue. I think the Democratic Party has done too much of that kind of strategizing lately, and I've seen little evidence that Party leaders basing their utterances and actions thereon produces positive results. If they believe Mr. Roberts is a good choice, they should vote for him, if they believe he isn't a good choice, they should vote against him. Attempting to explain, rationalize, argue, convince, etc., in today's already-polarized political environment, can backfire too easily. We must state our convictions, and act upon them, consistently and transparently.

There is a place for explaining and defending a stance on an issue, certainly. Some complex legislation has so many contradictory goals, effects, and motivations that the reasons why a particular representative votes often do need clarification. In a case where the major issues are so clear, explanations can too easily sound like waffling, spin-doctoring, pandering, or political cowardice. A Senator may be excused for not examining every consequence of every provision of each drop of legislation in the flood, but in the case of the confirmation of a Supreme Court Justice, Americans can reasonably expect all Senators to devote substantial time and effort to studying the candidate and understanding the issues as thoroughly as possible.

Now, none of this will console your wife, not to mention the millions of other women, minorities, and working people who have good reason to fear Mr. Roberts' arrival on the Court. He will be confirmed. However, we should not be too gloomy about it, either. Yes, it means that the Supreme Court, which has been valuable in the ongoing fight to render America a more just, equitable, and sustainable society, will become part of the problem. On the other hand, we should remember that for the last forty years, conservatives have been expending incredible efforts to limit the effectiveness of the Court.

The strategy behind conservative attempts to hobble the court rested on their perception of the Court as a "liberal tool." In applying Constitutional standards to matters of civil rights, equity before the law, etc., the Court effected sweeping changes with great efficiency. Battles did not need to be fought "state by state." Those who disagreed with the changes found such efficiency appalling.

Yet in today's political environment, returning to a "state by state" change model might be a very effective strategy for Democrats. Conservatives have been so successful in exciting suspicion, distrust, and hostility to the Federal government (not without help from some liberals,) that a great many Americans now harbor a visceral sense that "nothing good can come out of Washington." And that is not going to change just because the conservatives control all three branches of government - indeed, it will almost certainly get worse.

Yet most people still feel some measure of connection to state and local governments. In bread-and-butter issues, state and local governments lack the enormous "purse power" of the Feds, but they have tremendous impact on peoples' lives. If we work thoughtfully and with an eye to the long term, we may yet weather the disaster of Justice Roberts.

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