The Two-Nominee Strategy

Erick at Red State asked the question whether Republicans have a better chance of confirming conservative Justices if two are nominated at once, rather than one at a time. Let me explain in a little detail here why I think we do.
Let’s start with a trenchant analysis (as always) by Patrick Ruffini, which I’m quoting here at some length to make a point. Ruffini argues that Republicans need to come out swinging, as Ted Kennedy did with Robert Bork in 1987, on precisely how the two parties’ different views of judging will lead to different outcomes:

*Complaining about ideological opposition to a nominee is about as effective as whining about your opponent running a negative campaign.
*Lauding a judge’s qualifications is a soporific exercise. On paper, John Kerry was “qualified” to be President. But he was dead wrong on everything that mattered, and he was hammered relentlessly for it.
*The Supreme Court fight is best framed as any campaign would be, as a clash of two different philosophies, where both sides are equally accountable for defending their platforms and ideas.
*And most importantly, in judicial philosophy, as in legislating, outcomes matter inordinately more than process.

Ruffini then offers an example of what a bare-knuckled, Kennedy-style argument would look like:

What kind of America do Democrats want by opposing President Bush’s judicial nominee? The kind that the judges they prefer are trying to make for us:
*An America where your children can’t pledge allegiance to the United States of America, Under God (Elk Grove Unified School District v. Newdow)
*An America where gay marriage is imposed by judicial fiat (Goodridge v. Department of Public Health), and if the people of your state say no, they are silenced (Citizens for Equal Protection v. Bruning)
*An America where wealthy developers can take away your home (Kelo v. City of New London)
*A Banana Republic where elections can be manipulated after the fact to produce the desired outcome (Bush v. Gore; the Dino Rossi litigation)
*An America where the prisoners in Guantanamo Bay are more likely to be set free, possibly to conduct further attacks.

In contrast to this, Ruffini offers the positive vision of conservative judging:

How do we “strict constructionists” frame our “agenda?” As an anti-agenda. As one that opposes the imposition of any particular worldview through the Courts. As a simple sentiment, animated by faith in the body politic, and borne of 229 years of democracy in America:
Let the people decide.
Conservatives would never aspire to use the courts to ban abortion, or to end gay marriage. To state otherwise is patently false. Only through a Constitutional Amendment requiring overwhelming popular approval could these objectives be achieved nationally. We are committed to a healthy and vigorous debate at the state level in which the people decide, not judges.
. . . It is often noted that the decisions of the Supreme Court reach into the daily lives of average Americans. We don’t believe it should be that way — the Supreme Court is empowered deal only with matters contained in the Constitution, and last we checked, the words “abortion” and “homosexuality” weren’t mentioned in the text. These are matters for the people and their elected representatives, not for the courts.

I agree with most of this, particularly the juxtaposition of bad results flowing from liberal judging with a more general discussion of the positive philosophy of conservatism of ensuring that all judicial decisions are rooted in the legitimacy of popular sovereignty, whether through the current democratic process or the prior approval of express provisions in the Constitution.+ Conservatives generally do well when arguing about ideas and badly when we argue inside-baseball “fair play” type issues, on which it’s too easy for the media to play referee and side with the Democrats. On the other hand, I do think that some of the procedural points will at least be worth making: an ideological long-term filibuster of a Supreme Court nominee would be wholly unprecedented, and Republicans will need to make the case that the nominee, whoever it may be, is well-qualified to the job.
But here’s the thing Ruffini overlooks in his view of an effective communications strategy: while the GOP is making general arguments about judicial philosophy, the Democrats will be busy trying to pin down the nominee to commit to specific answers on specific issues, e.g., “do you believe in the right to privacy found in Roe v. Wade?” The nominee, for many good reasons, will want to avoid answering these questions and avoid pre-judging specific issues that will come before the Court. Unfortunately, there’s no way to avoid doing so – whether by having the nominee be evasive, refuse to answer, or by having the committee chair rule such questions out of order – without creating some bad visuals implying that the nominee is hiding something.
The challenge, then, is finding a way to simultaneously have the White House arguing about judicial philosophy and the specific bad results of a liberal judicial philosophy, without getting the nominee tangled up in having to implicitly adopt all of the arguments made on his/her behalf and defend them in hearings.
This is where it becomes highly advantageous to have more than one nominee at once. With two nominees, after all, the White House can talk effectively about its own judicial philosophy, and argue that President Bush has chosen these two judges out of a belief that they will generally uphold this philosophy, but at the same time acknowledge that there is no guarantee that either nominee will always rule in a predictable fashion (you need only look at the numerous recent examples of cases on which Justices Scalia and Thomas wound up on opposite sides of various decisions to see that this is inevitable even among judges who have fairly clear and rigid judicial disciplines). And with two nominees, it becomes harder for the Democrats to focus on specific objections to each judge, since some things that appear objectionable about one will not be true of the other.
This is all an extrapolation from the basic rule of politics that it is often easier to beat a candidate in the polls with “opponent” than with a single, flesh-and-blood opponent with specific flaws that can be the subject of a negative campaign. Opening a second front, if Chief Justice Rehnquist announces his retirement before a nominee to replace Justice O’Connor is confirmed or perhaps even nominated, would thus work to the benefit of conservatives in crafting a strategy to win public support for two conservative nominees rather than one at a time.

+ – Yes, as I’ve discussed before, I understand that this is not an ironclad rule, but it’s certainly true as a general matter that conservative judges are more likely to leave a broader array of issues to be dealt with in the democratic process.

One thought on “The Two-Nominee Strategy”

  1. * An America where our laws and values are overturned and questioned by judges who rely on foreign courts and standards to determine ours?

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