Strengthening Constitutional Self-Government

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Defining the mainstream

A typical move on the part of those who oppose conservatives is to claim that they, not the conservatives, are in the mainstream. Here courtesy of RealClearPolitics is someone who thinks this is dirty pool and that folks like James Dobson are a lot closer to the mainstream than, say, Al Franken is.

Discussions - 23 Comments

It’s about time somebody made this point, and the author does it quite well. Just because you disagree vehemently with some people doesn’t make their position "extreme." And just because you call them "right-wing extremists" doesn’t mean it’s true. We should keep this in mind as the debate continues to rage over President Bush’s judicial nominations. For instance, this editorial in yesterday’s NYT lauds the Democrats’ blocking of Bush’s "extremist" and "far right" nominees, without offering a scintilla of explanation or reasoning as to why they’re extremist or far right, a characterization which means (to me, at least) out of touch with most of the country.

The fact that they have thrown accusations around for so long without pointing to anything specific underscores the merits of their complaints.

Isn’t it possible that both people like Dobson and those like Franken are outside the mainstream?
I don’t think most Americans believe that those who oppose the nuclear option are "against people of faith," but I also don’t believe most Americans think that "separation of church and state means that anyone involved in religion should avoid involvement in politics."

In the article, Harsanyi makes several good points, but the one that really impressed me was his statement that "convincing is passe in politics." Unfortunately, I think he’s absolutely right on that point. The debate has gotten so "hateful and irrational" (to use Harsanyi’s words) that no one even tries to convince others anymore. Too often we each try to talk or discuss things with only those who agree with us, because dialogue with those who have different viewpoints devolves into name-calling and unpleasantness.

It goes both ways, and none of it is healthy or productive.

- JBD (Charging RINO)

Isn’t it possible that both people like Dobson and those like Franken are outside the mainstream?

I think Joe recognized this as well, which is probably why he referred to Dobson as "closer" to the mainstream, which is probably correct.

Theoretically, it does go both ways. But I would make two points. First, I would submit that most of the people who are calling Dobson et al "extremists"--the NYT, Schumer, Leahy, Durbin, Reid, etc--are certainly more out of the mainstream than are Dobson and these judicial nominees. Second, your point about people convincing each other is a good one, and just the one I was making above in the context of the filibuster debate. For all of the Left’s huff over preserving the right to endless debate over judges, they aren’t actually debating the merits of these judges, just calling them extremists. I think if we actually had a debate over these nominees’ various positions, the people would determine that, by and large, Bush’s nominees are ensconced in the nation’s mainstream. Which is precisely why the Left refuses to have the debate.

Cowering - I don’t disagree that the left hasn’t been effective in laying out the case against the nominees. While I oppose the nuclear option (mainly on long-term strategic grounds because I think the filibuster should be around when the GOP is back in the minority someday) I do think that if they’re going to filibuster, the Dems ought to actually have to stand and talk. That’s only fair. And if they have a case to be made, they ought to make it.

That said, I do think that some of the judges Bush has nominated are out of the mainstream, and I think that Dobson, Robertson and that crowd are just as far from the moderate center of the country as those on the left are. Janice Rogers Brown has said she wants to move the Court’s regulatory jurisprudence back to 1937 - that’s not only extreme, but quite activist (that word that strikes fear into the hearts of conservatives everywhere). I agree that those opposing them aren’t haven’t been making their case very well on the specifics, but I disagree with your assumption that if they did make the case, the majority of Americans wouldn’t agree with it. I don’t think that most Americans find anti-discrimination laws offensive, or reasonable environmental or workplace safety regulations.

Of course it’s fine to disagree on this point (and we clearly do). But this is the kind of discussion that people should be having all around the country, and it’s not happening. That’s the shame of where things stand today.

- JBD (Charging RINO)

Interesting you should pick Janice Rogers Brown to confront my assumption about the American mainstream, since we actually have demonstrable evidence that the Brown is certainly not out of the American mainstream. She won election to the Supreme Court in California--one of the bluest of blue states--with 74% of the vote. That means she’d probably get 80% in flyover country. Sounds pretty mainstream to me.

RINO, two points:

1) There is no strategic reason for Republicans to keep the filibuster. Contrary to many mistatements in the media, they have never used it at any time in history to block judicial nominees. They are pretty damn unlikely to finally start doing so now, after they have spent 18 months attacking it. Even if it stays, that is a procedural weapon that is henceforth unavailable to them.

Janice Rogers Brown has never said she wants to move jurisprudence back to 1937. That is a Democrat myth, and is one that is ever-shifting as they discover that some good things happened prior to 1937. (According to Cass Sunstein, who recently discovered some important civil rights cases from the 1920s and 1930s, Brown now wants to move jurisprudence back to 1920.) All of the 1937 nonsense is part of a conspiracy theory, about a so-called "Constitution-in-Exile" movement that does not exist, the mythology of which was invented in the New York Times magazine about 3 weeks ago. There is no such movement.

Now I ask you, if Janice Rogers Brown is so "extreme," why did the people of the nation’s most Democratic state elect her with 76% of the vote?

Cowering & Moe:
1. Supreme Court justices in California are not "elected." Rogers Brown was appointed to the CA Supreme Court in 1996, and faced voters in what’s called a "vote of retention" in 1998. In that, she did receive 76% of the vote; but of the four justices up for "retention" that year, all four received more than 65% support (there was very very little campaigning prior to this vote, and it’s not surprising that there was no campaign against Rogers Brown, considering she’d been on the court for less than two years). This was not an election - she had no opponent! - but simply a little-noticed referendum on a fairly sparse record up to that point. I’m sorry, but I don’t buy the argument that this number gives her a free pass to the "mainstream." If there had been an actual election, yes - but this wasn’t one.

2. Moe: There was a filibuster against Abe Fortas in 1968, supported by some Republicans as well as some Southern Democrats. What citation would it take to convince you of this? Here’s Wikipedia "the nomination set off a bipartisan filibuster." Here’s Encarta saying "Confirmation by the U.S. Senate was blocked by a filibuster." What more do you need, Moe? This isn’t made up. If you need more citations let me know, but every reference I can find says the same thing.

I think that Republicans ought to keep every parliamentary option available to themselves. You have every right to disagree, but I just think it’s a bad idea to get rid of a piece of the filibuster. What happens when the Dems try to get rid of the legislative filibuster next time they’re in power? Or the right to filibuster a particularly outrageous liberal nominee? It could happen. I’m just saying the GOP ought to be careful what it wishes for, because it could come back to bite us bigtime later on.

I just disagree with you that the "Constitution in Exile" movement doesn’t exist. There are certainly activist conservative judges who do want to roll back environmental regulation, freedom of contract, independent regulatory commissions, etc. This is not fiction, no matter how much you want to believe that it is. Rogers Brown has called the New Deal "the triumph of our socialist revolution." That’s not mainstream.

Charging RINO--

As for Brown, whether she had an opponent or not, 76% is still pretty high, especially for a Republican in CA, and the threshold for "mainstream" isn’t that daunting. I doubt Leahy or Schumer could win a similar vote in Alabama, even if they were running unopposed. Moreover, I seem to recall (and I’m just going off vague memory here, so I may be a bit imprecise) that Californians recalled or failed to retain a couple of their Supreme Court justices in the last decade or so, which to the extent it’s true, would tell me that CA’s statewide judicial election mechanism is effective to let us know if there’s something truly egregious about a person. As to her comments about the New Deal being our experiment with Socialism, well, it’s hard to disagree that it’s the biggest single step America’s taken toward Socialism. Thus, it doesn’t seem to be an inaccurate statement. Moreover, even if it offends you, do we really want to punish someone for one or two statements in the course of a career? CR, I’m sure you consider yourself in the mainstream; have you never said anything that other mainstreamers might consider not mainstream? JRB has been a CA Supreme Court justice for a decade now; I think her critics should put forth specific cases she wrote that they think are wildly wrong, rather than disqualifying her based on a colorful statement or two.

As to the Fortas filibuster, it is certainly distinguishable from what we’re seeing today. It was bipartisan (nearly as many Dems supported it as GOP), and I’ve not seen a scintilla of evidence to show that Fortas had majority support anyway, which means the filibuster didn’t kill his nomination; it just short-circuited the process. Today, the Democrats (all by their lonesome) are suddenly using the filibuster to stop appellate court nominees, who indisputably have majority support, on a systematic basis. That is clearly unprecedented.

Finally, and perhaps this is the root of our disagreement here, we have a subjective difference as to the efficacy of preserving the judicial filibuster for Republicans. As I’ve said before, the GOP has never resorted to the tactic itself (even if you count Fortas as killing a nomination by filibuster, it was quite bipartisan), and the Republicans have let plenty of noxious liberal nominees through over the years that we could have filibustered. At this point, I’m willing to let it up to the electorate. If they give the Dems the presidency and the Senate, then let them have their judges. If they appoint and get majority Senate support for lefty judges who want to do all sorts of crazy activist things that do not comport with Americans’ views, then let us campaign against them and win the next election. That’s the way it’s supposed to work. But while we have power, I think we should exercise it and confirm the judges we’ve been campaigning on. You say you want to preserve every parliamentary tactic; well, the constitutional option is a parliamentary tactic, and I favor our using it.

The whole thing about Fortas is historical revisionism. He was widely opposed by members of both parties, and the Senate leader tried to invoke cloture only a few days after he reached the Senate floor, while real debate was ongoing. Both parties saw through this attempt and allowed debate to continue. Johnson knew Fortas wouldn’t make it through, and pulled his nomination 3 days later. What more do I need? An accurate restatement of the facts would have sufficed.

Now how does that compare to the Democrats’ current position? They denied Miguel Estrada a vote because of his race. They have refused to even hold hearings on some judges because a senator wants his cousin on the bench instead. For the better part of Bush’s first term, the Sixth Circuit had 8 out of 16 positions filled. Part of that was because a lobbyist asked Ted Kennedy to keep Julia Gibbons from sitting on a specific case. (Congress can violate the separation of powers to, you know.) This is all a far cry from a bipartisan majority seeking more than 4 days to discuss a nominee for Chief Justice.

As for the "Constitution in Exile," I would like you to point me to one person who fits the description Jeff Rosen provided when he invented it a couple of weeks ago. Or one person other than Rosen who had ever even heard of this supposed "movement" prior to his fictional piece. Or any conservative judge who, as you posit, wants to roll back freedom of contract.

Quite a discussion.
I have to say I’m a bit shocked that Dobson or Robertson could be considered even close to main stream. Dobson is anti-Sponge Bob Square Pants and Robertson thinks judges are more dangerous than terrorists. They don’t seem main stream at all. They sound a bit crazy.

It’s time to get less serious and have some fun.
I have a quick questions for all of you? Are Ann Coulter and Debbie Schlussel mainstream? Just curious...
(Personally, I prefer nice Julie Ponzi than these two witches with capital "B"s.

Diane, I don’t think Ann Coulter’s mainstream, and I don’t know that other person. nick, I don’t think I would characterize Dobson and Robertson as mainstream (although I doubt Robertson really thinks judges are more dangerous than terrorists); all I was saying is I think they are closer to the theoretical mainstream than the bigmouths (i.e., Leahy, Schumer, NYT’s) who are branding them as out-of-the-mainstream, which is simply to make the point that I think the Left has a serious misconception as to where most of this country is on the political spectrum. Finally, and this is the real point of this discussion: I’m quite confident that all of Bush’s judicial nominees are comfortably within the mainstream of political opinion in this country, and most would rank among the upper echelon of intelligence on the federal bench should they be confirmed.
Finally finally, I’m probably not mainstream either...

I was just talking about Janice Rogers Brown and the abuse of the filibuster. I have no opinions on the rest of them, although I think Ohio Voter addressed nick’s concern in comment 4.

Let me clarify: I have no opinion of Robertson vis-a-vis Franken. I am quite sure, however, that Henry Saad and company are squarely with the median voter, which is why Schumer et al. are have tried so hard to deny them hearings yet never mention them when they are babbling about the so-called "extreme" nominees.

Moe - I think you’ve been sipping too much Duff on the job again! So, the Dems "denied Miguel Estrada a vote because of his race," eh?? Nice groundless assertion!

A November 2001 memo, by all indications written by a Democratic staffer to Sen. Dick Durbin (D.-Ill.), said that left-wing interest groups "identified Miguel Estrada as especially dangerous, because he has a minimal paper trail, HE IS LATINO [caps added for emphasis], and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

Estrada withdrew his name from nomination on September 4, 2003.

As Byron York has observed of these left-wing lobby groups discussed in the memos:

"The memos showed that Democrats didn’t just listen to the groups’ concerns, they tried hard to do the groups’ bidding."

The memos from Ted Kennedy and Dick Durbin’s offices proving my so-called "groundless assertion" were published in the Wall Street Journal. This isn’t an "assertion" at all. It is an observation of a well-known and widely-publicized fact. I’m sorry that it doesn’t conform to your worldview.

And yes, I have been sipping Duff on the job, and so has my pal Ted Kennedy.

One very reasonable interpretation of that memo quote could be that the writer was accurately predicting that any liberal Dem resistance to Estrada - due to his right-wing agenda - would be immediately twisted into bogus charges of racism, as a method to squelch ANY criticism of or resistance to Estrada.

What interpretation are you suggesting, that they (Dems) thought he was "dangerous" as a Latino nominee because they thought he was in the Mara Salvatrucha (MS-13) gang or something???

I think the idea is that it’s tough for the Democrats to unleash their traditional schpeel--that Republicans are a racist party of the privileged elite--against an Hispanic immigrant, thus making it tougher to ultimately defeat him. I also think there’s a fear among Democrats of having high-profile minority conservatives that act as examples to the minority masses that they don’t have to kowtow to the liberal racialist agenda, thus undermining the Democratic party at its core. This is especially true with regard to the fast-growing and electorally fluent Hispanic population, which raises one final possible reason: the Democrats would have trouble stopping Estrada if nominated to the Supreme Court, and thus the racist Republicans would get credit for the first Hispanic Supreme Court justice in US history.

Are you joking, Assland Voter? Estrada isn’t right wing. He was an official in the Clinton DOJ and received strong support from Clinton’s solicitor general. This was all about race and the Demos desire to keep W from nominating any high-profile minorities that he could later put on the Supremes. Their memos confirm that.

Not to mention that Estrada was never forthrightly criticized by Senate Democrats on any substantive grounds. The Dem senators and their interest-group buddies on the Left didn’t have the stomach for THAT fight. So instead they just stalled and stalled using a variety of well-worn tactics, and eventually they got their way as Estrada got sick of it and decided to get on with other things. If the Democrats really want to criticize a nominee on his or her merits, what better arena could there be than a Senate floor debate followed by a Senate floor vote?

A leading public rationalizer and excuse-monger on behalf of the stalling strategy, let it be noted, was now EX-senator Tom Daschle.

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