Jul 20 2005

John Roberts – Confirmation Predictions

Published by at 1:21 pm under All General Discussions,Filibuster Showdown

As a stalwart member of the Coalition of The Chillin’ I must express how I think the Rogers confirmation process will play out in light of the filibuster agreement made by the “Gang of 14” senators, who sold this as a way to avoid frivolous filibsuters and any ensuing vote on the removal of filibusters from nominess (the ‘constitutional option’.) My feelings are the democrats will not filibuster – unless they go totally beserk and launch into a fit of political suicide. And here is why.

First off the bar for defending a filibuster to the public is way to high for John Rogers. The “extraordinary circumstances” required for the Gang of 14 to disolve into a filibuster decision is never going happen with Rogers, a nominee who was confirmed unanimously, by consent (no floor vote), only 2 short years ago. Unless they find some major illegality he has committed in the 2 years since his confirmation, democrats will not be able to sell the general public on a partisan witch hunt and distraction from the War on Terror. If they do try to make the case, even for a short time, they will pay in the 2006 Senate elections. Right now I predict a Rep pick up of 3 seats in the Senate in ’06 (yes, a bit bullish, I know). But any attempt at playing games, especially if started and then pulled back, would push me to predict 4-5 seat pickup for reps.

Look at the Durbin debacle for guidance. All that heated rhetoric and in the end the public came out 80% against Durbin. Now that the public has been there once, it is not hard for them to get that irritated with liberal senators again.

This is underscored by a recent poll, which I cannot find now, but which is referred to by a liberal site that demonstrates the public is expecting the democrats to overplay their hand

Indeed, USA Today released a poll the same day showing that a majority of Americans believe Bush is likely to pick a candidate who lets religion cloud his or her legal judgment. But a majority of the same group also thinks Democrats will unfairly oppose the nominee for political reasons. Go figure.

So, will the democrats retain their sanity and avoid the political abyss? We need to watch the Gang of 14 and where they come out on Rogers. We have some indications right now.

First off Arlen Specter seems happy and ready to proceed without a filibuster fight – which is key.

“The emphasis is on detailed inquiry into Judge Roberts’ … ideas on jurisprudence and we’ll be dealing with that,” Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, said Wednesday, adding that the panel will go into Roberts’ legal positions “in detail” but would not ask the judge how he would rule as a Supreme Court justice.

When asked how he would respond if Democrats request memos Roberts worked on while serving in the solicitor general’s office, Specter said he will wait and see how things play out.

“There’s long been a concern with disclosing lawyers’ work products because it has a chilling effect on other lawyers in the same process … if they’re reviewed one day in the political context, it inhibits the freedom,” Specter said.

Being Chairman of the judiciary committee, the tone he sets will be echoed by the moderate republicans and ensure the votes will be there to quash a filibuster through the constitutional option.

Second to watch is John McCain, who came out a few weeks ago clearly stating there would be no filibusters for supreme court nominess, and who reiterated that claim again today

In another positive sign for Roberts, Sen. John McCain has professed his full support.

McCain, who led the so-called “gang of 14” Senate “moderates” some weeks ago, said he looks forward to a “smooth confirmation process and a swift up-or-down vote for Judge Roberts.”

Then we run through the well known moderate reps, starting with the two Maine Senators, Olympia Snowe and Susan Collins

Maine’s Republican senators are encouraging special interest groups to refrain from interference as the Senate reviews President George W. Bush’s nominee to the U.S. Supreme Court. Bush used a televised address Tuesday night to announce his choice of federal appeals court Judge John Roberts Jr.

Sen. Susan Collins praised his selection while calling for a timely confirmation “that is fair, thorough, and conducted with civility.”

Sen. Olympia Snowe joined her in calling for groups to allow the Judiciary Committee to proceed with an examination of Roberts’ record as the Senate determines his suitability to replace retiring Supreme Court Justice Sandra Day O’Connor.

I have not seen any comments from Chaffee, but with these four in the bag, so to speak, the constitutional option as a counter to a filibuster is there. And that is really what matters. Not whether the democrats can limit their defections to five and hold a filibuster – they may be able to. But the response to a filibuster is a vote to eliminate filibusters for all nominees. And that number of votes is there right now. So the dems cannot filibuster.

But let’s see where some moderate democrats are on this so far. Not too many statements out yet, but Mark Pryor was out making consensus noise

One of those Democrats, Arkansas Senator Mark Pryor, told Fox News he was “unaware of anything right now that causes me any concern” about Roberts. “The last thing we need as a country is another 52-48 knock-down, drag-out vote. I hope Mr. Roberts will be much more of a consensus candidate,” Pryor said.

And Joe Lieberman is going to find it difficult to backtrack from these comments from just last week

Sen. Joe Lieberman, Connecticut Democrat and one of the “Gang of 14” senators who negotiated an end to the judicial filibusters earlier this year, told reporters last week that Judge Roberts is “in the ballpark.” He added that Judge Roberts or any nominee will be carefully scrutinized.

UPDATE – 07/21/05:

Lieberman’s comments on Don Imus set the context, for now, that Rogers is not a filibuster candidate

Sen. Joseph Lieberman, one of 14 senators who helped avoid a confrontation over judges, said their message to Bush essentially was, “Don’t send us an extremist that’s going to blow the place up, and first look is that that’s exactly what he has not done.”

“In other words, he’s sent us somebody that’s got impressive academic and legal credentials and seems to have a record of personal honor,” Lieberman said on the Don Imus radio show


Ben Nelson has been tacking right for sometime now, since he hails from a deep red state, and his comments are positive, albeit non-committal

Sen. Ben Nelson, D-Neb., a member of the Gang of 14, said Tuesday that, “the president has been reaching out. Most people thought he was reaching out.”

While not on board, they contrast easily with comments from the rabid liberals Kennedy, Schumer and Durbin.

UPDATE – 07/21/05:

Ben Nelson also has come out leaning well away from a filibuster:

“Everybody ought to cool their jets on this and let the process work,” said Sen. Ben Nelson of Nebraska, a Democratic member of the group. “Going in, it looks good” for Roberts.


These are the players to watch. Right now Bush has 54 of the 55 Republican Senators (Chafee is the wild card). I think he also has at least 4 democrat Senators: Ben Nelson, Mark Pryor, Blanche Lincoln and Ken Salazar. Salazar is especially vulnerable as one of the Gang of 14 since his word to his constituents has already been found wanting at times. He is right on the edge of defeating a filibuster and clearly conmfortably ahead in the constitutional votes.

My opinion is watch Robert Byrd. If he flies the democrat coop there will be no filibuster and minimal haranguing by the democrats. They cannot afford another Durbin Debacle right now.


Looks like the deal will hold – too many defections on the democrat side. Feinstein came out the other day and just sealed the fate of Roberts. Now Byrd has come out and put a bow on it. As I said, watch the Brydie and we will see which way this is heading.

After Mr. Bush nominated federal Judge Roberts this week, Mr. Byrd again issued a statement praising the president. “I thank President Bush for reaching out to senators on both sides of the aisle as he worked to select a nominee for the court,” Mr. Byrd said. “I hope that this bipartisan cooperation will continue as the confirmation process begins.”

I’m Chillin’….

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