Weekly Shredder 46:
Howard Dean's Half-Hearted Attack
by James Norton

"Can Roberts Abandon Partisan Streak?"

This gorgeously ironic title sits atop a Democratic Party statement about the nomination of John Roberts to the US Supreme Court.

The piece, which implicitly and explicitly calls for bipartisanship and fair play, starts like this:

Washington — Faced with a growing scandal surrounding the involvement of Deputy White House Chief of Staff Karl Rove and Vice President Cheney's Chief of Staff Lewis Libby in the leaking the identity of a covert CIA operative, President Bush announced his nomination of John Roberts to the Supreme Court late this evening.

Other than spending 60 percent of its lead sentence fanning the flames of a damaging and still-murky political scandal, so far, so bipartisan!

Democratic National Chairman Howard Dean today issued the following statement on the nomination:

"It is disappointing that when President Bush had the chance to bring the country together, he instead turned to a nominee who may have impressive legal credentials, but also has sharp partisan credentials that cannot be ignored.

For archives, audio, and background about the column, click here.

"Democrats take very seriously the responsibility to protect the individual rights of all Americans and are committed to ensuring that ideological judicial activists are not appointed to the Supreme Court. The Senate Judiciary Committee will now have the opportunity to see if Judge Roberts can put his partisanship aside, and live up to a Supreme Court Justice's duty to uphold the rights and freedoms of every American and the promise of equal justice for all."

Obviously, Dean needs to leave the pet door open for the Democratic attack dogs; a tasty skeleton could tumble out of the judge's closet at any moment. And this will play well with party activists who are so darn angry that they want every national conversation to be a shouting match.

But — at this point — why waste the ammunition? Why not play nice and let this nomination glide through?

"You poltroon! It's people like you who are the reason the Democratic Party's fallen apart! It's people like Dean who are going to fight the GOP, and bring the party back into power!"

Maybe you have a point.

But there's a big catch. The Democrats can't fix the problems caused by not standing up for anything by suddenly fighting everything.

As it stands, Roberts is a tough nominee. He's "Midwest calm." He's got deep support among the Republican elite, and he's on track to sway the Democratic cross-overs (such as Max Baucus of Montana) and sell-outs (such as Joseph "Joementum" Lieberman). Lieberman, in fact, has already gone on the record as likely to support Roberts.

Barring exciting new data, the Democrats don't have the votes to win the fight, or any clear way to swing the public into their fairly Spartan "no partisan nominees for the Court" camp. You don't get to the Supreme Court by retreating, a la Socrates, into the wilderness of philosophical purity. You shake the hands of people with muddy palms.

Thus, the Roberts nomination offers Democrats a chance to look gracious and bipartisan — or like scruffy, punch-drunk prizefighters who, as usual, get beat down in a fixed fight.

There are, of course, respectable reasons to worry about Roberts.

He's not exactly a staunch defender of Roe v. Wade. He's juiced into the Republican machine, up to and including the Federalist Society. And, as Slate's Emily Bazelon pointed out, Roberts made a recent pro-Bush ruling that greased the skids of the American mini-gulag. Unfortunately, unlawful detention (and prisoner torture) isn't a hot-button issue with the public. If the Democrats had made human rights an issue earlier on, this could have been an exciting — and winnable fight.

No such luck. So Dean goes after Roberts with a watered-down but hostile statement that implies a half-hearted campaign of political bickering, followed by the inevitable Senatorial collapse.

But more interesting than Dean's statement are the responses it prompted from the Democratic faithful.

When you're posting a rallying cry on your own website, you should generally hope to see 80 to 90 percent of your troops chiming in with their throaty agreement.

Instead, comments mostly looked like this:

As a Democrat, I have to agree with the general tone of the comments here. We don't know very much about Judge Roberts yet, and frankly neither do the Democratic senators....

All in all, things are looking okay. Yes, Roberts is a conservative; no, he isn't a moderate. But welcome to a world where the conservative political party has control of the White House and the Congress — they don't have to nominate a moderate, and they didn't. Can you blame them? If the situation were reversed, would we have nominated a moderate? I don't think so.

Or this more hard-headed comment:

I am a member of the Democratic party, and I am worried about the direction it is heading. The Republicans control all three branches, and the Democrats seem to be floundering at every turn. Barring some revelation about this guy's past, there is no way for the Democrats to win a fight against him. They should just smile and consent. The least productive thing to do now would be to fillibuster it, because if that happens the Republicans will not hesitate to revoke that ability. The leadership of the Democrats should start working on courting the middle, and only fight back when there is either a chance to win, or when there is really nothing at stake.

This attitude — realistic and well-framed as it is — provoked a hearty response from the passionate minority of readers:

WHAT?!?!??!!!! This is a candidate who has clearly and consistently come out against choice and affirmative action, and all you guys can say is "give him a chance?"

JESUS! You are all we have to stop the right-wing juggernaut from:

* Totally bankrupting Social Security;
* Sending thousands more kids to die in Iraq so rich white men can get their hands on even more oil, making them even richer;

[etc., etc., etc.]

Now BushCo is trying to cram some corporation-loving, hard-right ideologue down our throats and all you can say is "let's be open-minded?"

My heart is breaking that, by all signs, this is as good as it gets from the Democratic Party. Martin Luther King, Shirley Chisholm, and Susan B. Anthony are doing cartwheels in their graves right now.

Hyperbole aside for a moment... Let's assume — for the sake of argument — that the "right-wing juggernaut" is as evil as its critics claim. Is it logical to fight it by provoking a public confrontation on every single issue and decision the president pursues? Or by concentrating political and moral firepower on the issues (Iraq, Rove/Plame, torture, corruption) where the GOP is actually vulnerable?

There are those who would argue that the Democratic Party has a well-deserved reputation for being weak and ill-disciplined. True as that may be, the way to fight the reputation isn't to squander ink and effort on a futile partisan fight; it's to have the discipline to attack issues that are squarely in the public's interest, where the administration is soft and poorly armored.

John Roberts is a handsome, well-spoken, intelligent, well-respected, well-connected, somewhat enigmatic guy. Unless he trips up — and bad — during the hearings, he's going to steamroll his way onto the Court.

Should the Democrats fling themselves under that steamroller? Or take up a more realistic fight?

Clearly, it depends who you ask.

E-mail James Norton at jim@flakmag.com.

— graphic by Derek Evernden (derek@ocellus.net)