Andy McCarthy is asking me (among others) to justify the claim that Senate Democrats have paid a price for filibustering Bush’s judicial nominees, and arguing that even if they did lose some Senate seats they would find that a price worth paying. The question is good and the argument interesting.

First, on Daschle. Here’s McCarthy: “Had Daschle won, which he came very close to doing, could it really credibly have been said that this signalled that the filibusters were a a winning Democratic strategy? We would have scoffed at such a contention, and I don’t think the counterclaim is any more persuasive just because he lost.” I think the counterfactual doesn’t work. If Daschle had won, we could confidently have said that filibustering judges didn’t hurt him enough to cost him the election–but we would still have said that it hurt him. Why? Because we know from national polls taken during the election that voters, by a ten-point margin, preferred Bush to appoint judges rather than Kerry. Because we can see that in red states, it’s Republican Senate candidates rather than Democrats who have been raising the issue on the stump. Because we have plenty of reason to think that the social issues such as abortion have been helpful to Republicans in Senate elections in 2002 and 2004 in Missouri, North Carolina, Georgia, South Dakota, Minnesota, and Louisiana–I’m probably leaving a few states off the list–and we know that those social issues are deeply entangled with the judicial-confirmation issue.

McCarthy is of course quite correct to point out that most people don’t pay close attention to politics–and that’s an understatement. But I’m not sure how far this gets you. People don’t have to be consciously aware of the details of candidates’ positions on issues for those positions to affect their votes. If Daschle had gone along with, say, the Estrada nomination, it would have made it much harder for the Republicans to portray him as an obstructionist opposed to conservative values. Given how close the vote was, I’m inclined to say that the obstruction made the difference in that race (which, of course, could also be said of other issues).

I don’t think it’s true that Ashcroft was confirmed without a filibuster because his job is seen as a national-security job or that his confirmation therefore holds no lessons for a Supreme Court confirmation fight. The position simply wasn’t seen as primarily or even largely national-security-related in January 2001; it was debated in terms of race and religion. I think what’s crucial is that the public thinks that the AG position is important and has to be filled for the government to run. They think that also about the Supreme Court. They don’t think that about appeals-courts nominees.

Finally, on the question about Democrats’ being willing to give up Senate seats in return for justices: that’s a perfectly reasonable point when it comes to liberal activists or donors. But it’s not obvious that the Democrats who hold those seats are always going to have those same priorities.