Democrats' disarray muddies court fight

July 14, 2005|By Jonathan Turley

IN ONE of the most gripping scenes from Braveheart, thousands of Scottish yeomen face the professional army of the English King Longshanks. Stripped to the waist and painted blue, the yeomen spoil for a fight, daring the English to join them in battle. The problem was their leadership, conniving lords who were equally determined to avoid a battle with Longshanks and negotiated for their own interests.

This week, the scene seems eerily familiar for some Democrats who seem more ready to fight than their leadership.

Millions of dollars have been raised and Democratic voters are spoiling for a fight over the confirmation of a Supreme Court justice to replace Sandra Day O'Connor. Yet they have been given a daily diet of statements from Democratic leaders that seem intent on not only avoiding a fight but also embracing candidates who would be anathema to the Democratic base.

As the White House comes closer to a nomination, the Democratic Senate appears in near-total disarray. Conflicting statements from Democratic leaders appear to be ferocious one day and fawning the next. What is clear is that there is a dangerous and growing disconnect between Democratic leaders and their base.

Historically, the only successful opposition campaigns to Supreme Court nominees have been marked by tight discipline and a single consistent, coherent position - such as the defeat of Robert H. Bork in 1987. Democratic senators appeared to understand this principle when they held a summit before the start of the second Bush term to develop a single, unified strategy. Yet, since the fight over the filibuster rule, shifting Democratic positions have been not just inexplicable but incoherent.

Consider the filibuster proposals. The Democratic senators initially laid out a clear, principled position that they could not allow a vote on at least four of the pending appellate judges. While some of us did not agree with that position, we could at least understand it. Then the Democratic senators suggested that they would agree to allow the Republicans to have up-or-down votes on some of these candidates if the GOP agreed to bar some others. As part of this deal, they left it up to the Republicans to pick who would be confirmed and who would be rejected.

The Republicans rightfully called foul about such a crude head count. It was a position entirely divorced from principle. Then came the filibuster deal itself. Seven Democratic senators agreed to a proposal that protected the right of the filibuster while allowing some candidates to be confirmed. The result was a disaster for the Democrats. To this day, most people cannot figure out what the Democrats got from the deal. The four candidates that the Democrats had vowed to filibuster as the previously deemed "worst of the worst" were allowed to be confirmed, while the Democrats promised (according to some of the signatories) not to filibuster any nominee on the basis of ideology. At the time, Minority Leader Harry Reid heartily praised the deal and the dealmakers for a masterful and historic agreement. Now, the Democrats are facing either a breach of the agreement by voting on the basis of ideology or a vote with Republicans to prevent a filibuster under the prior agreement.

Senator Reid's announcement that he would support conservative stalwart Antonin Scalia for chief justice continues the confusion. While Mr. Reid was right about Justice Scalia's qualifications for such a position, his statement appeared to take fellow Democratic senators - and certainly the Democratic base that has long demonized the justice - by surprise.

When Justice O'Connor resigned, the confusion only deepened. Senator Reid announced that he was recommending that the president should appoint one of the following Republican senators to replace her: Mel Martinez of Florida, Mike DeWine of Ohio, Lindsey Graham of South Carolina, and Michael D. Crapo of Idaho. His proposal bordered on the bizarre for many Democrats. Mr. Reid offered little reason why these senators have the legal background to justify such an appointment for the Supreme Court - let alone how their views mesh with basic party positions on abortion and other issues.

Soon after Mr. Reid's proposal for the appointment of his colleagues, he dropped another bombshell - he thought U.S. Attorney General Alberto R. Gonzales would make a qualified candidate. Mr. Reid explained that, after all, "he's attorney general of the United States and a former Texas judge." The problem is that Mr. Reid and most Democratic senators voted against Mr. Gonzales for the post.

After vehemently opposing Mr. Gonzales only recently for a political appointment, Mr. Reid was saying that he could support him for a lifetime appointment where he would interpret the law for the nation. Mr. Reid's position on Mr. Gonzales has led to a further erosion of credibility for the Democrats. For Democratic stalwarts, Mr. Gonzales appeared marginally pro-life but he also appeared strongly pro-torture.

Of course, none of this bodes well for Democratic voters. In Braveheart, the character of William Wallace was able to undermine the secret deals with the Scottish lords and force a defining battle. Unless a Democratic Wallace appears or some sense of organization materializes, this is a fight that may be over before it starts. For now, the coming battle may be best described by that English bard as "full of sound and fury, signifying nothing."

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and teaches a course on the Constitution and the Supreme Court.

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