Pres. Barack Obama, one of the most successful politicians this country has ever produced, made history even by taking the oath of office: He is the first president to be sworn in by a chief justice whose appointment he voted against. Watching this week’s rapid-fire confirmations of his cabinet selections, one couldn’t help but marvel at the irony.
Obama, with lots of media help, has skillfully hidden beneath a “unifier” veneer that belies the fierce inner partisan. He exudes a low-key cool. In his inner circle, the motto is “No drama”—as the administration’s funny uncle, Vice President Joe Biden, found out the hard way when he was taken to the woodshed over a classless jape about the chief justice’s oath-mangling. The new regime may be teeming with Clintonistas but, at least in its larval phase, it has an un-Clintonian sense of dignity and discipline.
But there’s style, and then there’s substance. Remember the nomination of that chief justice, John G. Roberts Jr.? Obama, then in the Senate for about five minutes, didn’t hesitate a moment before voting no. And let’s recall the setting. Roberts was among the most qualified nominees ever named to the high court. His performance at the Judiciary Committee hearings was a tour de force, awing not only combative Democratic senators but a mainstream press whose disdain for conservative jurists is Pavlovian. Perhaps most important: By the time Obama had to cast his vote, the Senate’s consent to Roberts’s nomination was assured—Obama was not on the Judiciary Committee, which had already approved Roberts by a 13–5 margin (a landslide by that committee’s standards for conservative nominees), and the chamber’s final tally was a lopsided 78–22.
But Obama had no problem standing with 20 percent of lawmakers in opposing Roberts—just as he was content to be in a hard-Left fringe that opposed surveillance reform and, in Illinois, a ban on partial-birth abortion. Obama is a smart guy. He knew he couldn’t defeat Roberts, and he wasn’t trying to. He was trying to lead. He saw himself, quite perceptively, as the vanguard of an ideological movement, and he was doing what a vanguard does: showing the way.
For Obama, Roberts represented the adversary in countless ways: He embodied judicial restraint, hostility to Roe v. Wade, rejection of Obama’s theory that “positive rights” (i.e., welfare rights) may be discovered in the Constitution, deafness to claims that the Constitution may be read to ban that which it explicitly permits (e.g., the death penalty) and to permit that which it explicitly bans (e.g., race-conscious unequal protection), and so on. For what little it’s worth, I don’t agree with any of the now-president’s views on these matters. One needn’t agree, however, in order to admire his skill.
Opposing the Roberts nomination was not about beating a nominee. It was about making a point—or, rather, several points. It was about fighting, which is what vibrant movements do when high-stakes moments arise. It was about defining Obama by defining what he was against. It was about setting a bar to lead the opposition against future nominees. It was about putting down a marker for future elections: This is who we are, and this is who they are. It was about proving that Obama had the self-confidence to fight and the brains to know that fighting and losing often makes the team stronger in the fights to come.
The fight, the principled stand, is what stirs and catalyzes an ideological movement’s supporters. President Obama insists he is a pragmatist, not an ideologue, but that is a feint. Governing is an unavoidably pragmatic exercise, a choice between concrete, available possibilities. But those possibilities are not arrived at by pragmatism. They are driven by ideologies, by how elections define competing points of view and apparently resolve them. Obama, for example, may be closing Guantanamo Bay in a deliberate, pragmatic fashion. But this display of pragmatism is the fallout of a more fundamental decision: It is resolved that he’s closing the place. We had an election: The side that depicts Gitmo as a blight on America’s reputation made its case; the side that sees Gitmo as a crucial national-security asset didn’t show up. Obama’s side fought and won the big ideological argument about the direction of our policy. The “pragmatism” is just details.
The president has a winning political formula. Show up for all the big fights and get the rhetoric right, because the base needs the big fights and the rhetoric, even when pragmatism limits action’s ability to achieve rhetoric’s ambitions. Vote “present” if you have to, but resist voting for what you’re against because the precedent will kill you down the road; and, at all times, keep pushing the ball up the field—with the occasional long pass when the other side falls asleep, but otherwise with three-yards-and-a-cloud-of-dust, a strategy tailor-made for the Leviathan of a field we’re playing on.
THE GAME AND THE SYSTEM
Having mastered the game, Obama is now governing rather than challenging. This week, in his opening gambits, he pushed to get his cabinet approved. It was hard not to admire his agility, even while deploring his choices. He navigated confirmations of an attorney general whose last tour of duty ended in scandal, a Treasury secretary who evades income taxes, and a secretary of state whose tortuous financial conflicts would make Bernie Madoff blush.
The last of those, Hillary Clinton, won confirmation by a whopping 94–2 vote. Of the 41 Republican senators remaining after the Rout of ’08, only two (South Carolina’s Jim DeMint and Louisiana’s David Vitter) voted against her. Let’s leave aside Hillary’s running the State Department while Bill’s foundation rakes in millions from foreign magnates. Wasn’t there a cavalcade of other reasons for Republicans to vote no? I’m not talking just about the Clinton scandals (and Hillary was not exactly AWOL in those); I’m thinking mainly of the Clinton foreign policy and its results: a string of terrorist attacks, Arafat-smooching, the intifada, the gutting of military and intelligence assets, the conversion of national security into a litigation matter, Aristide, Kyoto, the International Criminal Court, and on and on.
Even if Mrs. Clinton was a shoe-in because of the Democrats’ heavy numerical advantage, these were juicy issues on which stands needed to be made. But the GOP went like sheep to the abattoir. They were led in customary fashion by Sen. John McCain, whose claim to fame is departure from conservatism: on taxes, government intrusions into the private sphere, free political speech, immigration, global warming, constitutional rights for alien terrorists, and other things.
McCain, of course, emerged as the party’s standard-bearer by winning low percentages in an overcrowded primary field, his tally padded by crossover Democrats and nominally unaligned moderates. In the uninspiring campaign that followed, he naturally struggled to separate himself from Obama on anything other than Iraq. The maverick’s signature moment was the ode to “bipartisanship” he delivered on the Senate floor in the stretch-run as the economy collapsed. Leadership, according to McCain, meant papering over the fiscally irrational credit policies of liberal Democrats and “compassionate conservatives,” the better to impress his main constituency—the media—with his willingness to “come together” with the people who caused the catastrophe.
The choice thus reduced to Democrat versus Democrat-lite, McCain lost decisively. Heretofore the scourge of money’s corrupting effect on our politics, he has now morphed into the champion of Hillary Clinton—a friend for whom his admiration has never been hidden and with whom, ideologically, he’s got more in common than he does with conservatives. As always, McCain cowed fellow Republicans, who shrivel under his media starlight. They lined up with him on Hillary, just as they did on interrogation practices and campaign-finance reform—in the process doing more to advance the “torture” slander against the Bush administration and demoralize the conservative base than any Democrat could have hoped to do.
With Hillary ensconced at State, ten Republican senators then voted to install Timothy Geithner at Treasury, a quarter of the party establishment thereby endorsing the enforcement of tax laws by a tax cheat. The decision not to mount a real fight on Geithner was calculated. According to a key GOP senator, as National Review’s Byron York reported, Republicans figured “members of the minority party have just so much ammunition, and using it against a cabinet official who serves at the pleasure of the president is not as wise as saving it to use against, say, a judicial nominee seeking a lifetime appointment to the bench.”
Like Obama’s pragmatism, this is hooey. Republicans just don’t want to fight. Fighting is hard. The other side calls you “partisan” and reminds people about all the times you betrayed the principles you now purport to hold dear. It’s very unpleasant. That’s why, contrary to the Democratic approach on Republican judicial nominations—exemplified by then-Senator Obama—the Democrats’ last two Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer, cruised to confirmation by votes of 96–3 and 87–9. No doubt President Obama is quaking in his stylish shoes in fear that the intrepid Republicans are keeping their powder dry for his judicial picks.
NO STOMACH FOR FIGHT
And then there is Eric Holder. Unlike Hillary and Geithner, we had already seen him in a job similar to the one he would be filling—as Clinton’s last deputy attorney general, he effectively ran the Justice Department (which is not to say he ran the Justice Department effectively). The result? The Marc Rich pardon, the pardon of terrorists while the country was under terrorist assault, the refusal to investigate Vice President Gore’s illegal fundraising, Elián Gonzales, affirmative action, a dangerous obsession with “racial profiling,” and even taking sides against law-enforcement and for an admitted bank robber in order to preserve Miranda, the Left’s most cherished Warren Court invention. Then, on leaving DOJ, Holder advocated race-conscious school admissions and joined a firm that brags about donating its services to death-row inmates and alien enemy combatants detained at the Guantanamo Bay prison camp (the existence of which Holder condemned).
As a top Obama adviser, Holder called the Supreme Court’s recent decision giving U.S. constitutional rights to alien terrorist suspects “an important first step,” but added that “we must go much further.” He accused the Bush administration of torture (i.e., enhanced interrogation), domestic spying (i.e., intercepting terrorist communications into and out of the U.S.), suspending habeas corpus (i.e., holding prisoners of war without trial), and imprisoning Americans without due process (i.e., in seven years, detaining as enemy combatants exactly two American-citizen terrorists, one of whom later renounced his U.S. citizenship and the other of whom was later convicted of terrorism crimes). For these “needlessly abusive and unlawful practices,” as he put them, Holder promised Obama supporters a “reckoning”—i.e., war-crimes investigations and prosecutions. On cue, at his confirmation hearing, he recklessly declared that waterboarding is torture—sending shivers through the intelligence community (which now fears indictments), ratcheting up international pressure to file charges against U.S. officials (the United Nations Special Rapporteur on Torture is demanding action), and increasing the likelihood that Bush-administration officials, including the former president himself, will be prosecuted by foreign countries if the Obama Justice Department declines to act.
So what are Republicans doing? Why, they’re rallying behind Holder, of course. The Judiciary Committee overwhelming approved his nomination, 17–2, with six of the eight Republicans joining Democrats who’ve never seen a Republican nominee they couldn’t bruise, block, or bury. The nominee now moves on to the full Senate, where confirmation, with solid Republican backing, is assured.
In a radio appearance last week, Michael Steele, a Holder supporter who is a candidate to become head of the Republican National Committee, explained this, er, strategy. We have to be smart about picking our battles, he told a disgruntled conservative caller. Steele asked, is there any real chance of beating Holder? When she conceded there was not, he replied, with evident self-satisfaction: Why would I want to get into a fight we can’t win? He then spoke vapidly about how it was more important to get Holder in power: that, you see, is when we really get to confront him on issues.
Somewhere, President Obama was smiling.
— Andrew C. McCarthy, the legal-affairs editor of National Review, is the author of Willful Blindness: Memoir of the Jihad.