Bench Memos

Our Allies on the Left

The Left faced a choice between two strategies in dealing with the Roberts nomination. But unable to embrace either of those two strategies, it has instead adopted a third course that is likely to prove most beneficial to conservatives.

The first strategy would have been premised on the widespread assumption that Roberts will be confirmed. Under that strategy, Democrats would try to paint as moderate a picture as possible of Judge Roberts in order to set up the fight over the nominee for the next Supreme Court vacancy. In that scenario, Roberts would be confirmed by a huge margin—90-10 or better. When the next vacancy develops, Democrats would then use their votes for Roberts to portray themselves as reasonable and would attack the next nominee on the ground that he is no John Roberts.

The second strategy would have been to launch an all-out war on the Roberts nomination. Under that strategy, Democrats would, from the outset, have labeled Roberts an extremist. They would have used every opportunity to mobilize their base to try to defeat the Roberts nomination and, failing that, to inflict serious political injury on the administration in the process.

The third course—whether it deserves the label of “strategy” is dubious—that the Democrats have in fact adopted is one of using document demands and other maneuvers to try to delay the Senate’s confirmation of Roberts, in the hope that ammunition to use against him will develop in the meantime. This strategy gives every promise of backfiring. Set aside for now whether the White House has adopted a coherent position on which documents from Roberts’s past service in the executive branch should be made available. It now appears that these documents will, on the one hand, show that Roberts is a strong conservative (insofar as any political label can properly be applied) on constitutional and legal policy issues, but, on the other, not give Roberts’s enemies any significant ammunition to use against him.

What all this will mean in the end, I think, is very encouraging for conservatives. Here’s my admittedly somewhat hopeful, but (I think) realistic, set of predictions:

1. By a large margin, the American public will recognize that Roberts deserves confirmation.

2. Left-wing groups will nonetheless push Senate Democrats to vote against Roberts, so he will probably receive no more than 60-70 votes in favor of his confirmation.

3. The American public will therefore increasingly understand that Senate Democrats are not reasonable and will discount their screeching about the next nominee.

4. The next nominee, no matter how conservative, will not be perceived as markedly more conservative (or less deserving of confirmation) than the John Roberts that Americans come to know from the documents that are made available.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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