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Supreme Court Fatalism

Ampersand has a post up making a pretty convincing case that the Democrats and liberals have already lost the fight over Sandra Day O'COnnor's* replacement on the Supreme Court. By losing Senate elections, they've put themselves in a position where they lack the power to block anyone Bush proposes. In the comments, three arguments have come up as to why Democrats and liberals should keep fighting. I think one of those arguments makes sense. But first, my view on the Democrats' dim hopes.

With only 44 seats plus Jeffords, the Democrats lack the votes to defeat a Bush pick in an up-or-down vote -- even in the extremely unlikely case that they manage complete party discipline. The prospects of a significant number of defectors from the GOP side is likewise slim. Bush and Frist will be leaning on the rest of the party hard, and if he's clever -- which he is -- Bush won't pick someone so controversial that moderate Republicans and those in more vulnerable seats will be unable to support.

What about the filibuster? Assuming party discipline, and in the extremely unlikely event the GOP doesn't use the nuclear option, the Democrats have enough votes to filibuster. But merely staving off cloture is not enough. A filibuster is a stalling tactic, so it depends on the other side being willing to eventually back down. As Lani Guinier has pointed out, simple majority rule is all well and good when everyone can expect to be in the majority sometimes, but when there's a permanent minority group, you could wind up with 49% of the people getting their way 0% of the time. The filibuster is one mechanism that can let a minority pick an issue or two and push the majority into saying "geez, if it means that much to you, we'll let you have your way this one time." But it breaks down when the majority cares just as deeply about that issue. And there's no issue more important in modern politics than abortion**. The activism of the religious right will give the GOP courage in the face of a filibuster. And in losing the war to define the public discourse, Democrats have ensured that, should the fight drag out, they'll recieve the bulk of the blame.

Even should the first nominee be defeated through some improbable turn of events, the Democrats wouldn't have really accomplished anything. The next Justice has to be nominated by Bush, and he simply will not nominate anyone to the left of Rehnquist, because he knows he doesn't need Democratic votes. The fight will simply start all over again with a new face on the nominee, and with the public's patience for "obstructionism" wearing thin.

Now onto the arguments for why we should fight anyway. First is the "don't be discouraged by long odds" argument. It denies my and Amp's claim that there's no chance of victory, and cites the inspirational example of other fights that looked hopeless when they began but were ultimately won. Beyond simply repeating my arguments above about the impossibility of victory, there are two things to be said against this argument. First, that even more fights that looked hopeless at the beginning turned out to be, in fact, hopeless -- someone wins the lottery every day, but millions more lose it. Second, hopeless causes take a long time to win. But the fight over O'Connor's replacement has a time limit. The larger fight for a liberal Supreme Court and a secure right to abortion is a winnable long shot. But if you expand the definition of the fight in this way, you wind up making argument #3.

The second argument for continuing to fight is that futile resistance is noble. To go down fighting is presented as a virtuous act, whereas picking your battles is tantamount to allying with the pro-lifers. I simply cannot accept this kind of deontological vision. The goal is to secure the freedom and well-being of the American people by establishing a liberal set of laws, not to demonstrate our own tragic virtue. To fight a hopeless battle is a waste of resources.

The third argument is one I find much more convincing. It states that in fighting Bush's nominee, Democrats and liberals can build capital that can be used in future battles -- most immediately, the 2006 Congressional elections. (In a best case scenario, Rehnquist hangs on until late 2006, at which point the Democrats have picked up enough seats in the Senate to twist Bush's arm into nominating an O'Connor-esque moderate.) The Democratic leadership seems to take an inverse version of this view -- that by rolling over and supporting Bush's nominee, they can build capital with Republicans and moderate voters. But this strategy has failed in the past, and is sure to fail again if it's used on such an ideologically charged issue. It would reveal that Democrats are spineless and unprincipled. I propose, instead, that the nomination fight be used to build the image of the Democrats and liberals. We need to show ourselves to have a set of inspiring principles that we're willing to stand behind, and to reveal the GOP as pandering to unpopular and unsavory elements of the country. Unlike the deal-making and advantage-scrounging strategy suggested by the first argument, or the self-righteousness and resource-burning suggested by the second, this third argument pushes us toward a focus on reframing and on public outreach. And it puts a silver lining on the possible nomination of a wacky extremist, as such a person will make better political hay, thus somewhat outweighing their worse rulings.

*It's O'Connor, not O'Conner, people!

**And let's face it, abortion will be the one and only issue in the public battle, despite the hopes and fears many of us may have about what Bush's appointee will do to other areas of jurisprudence.


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