Worse yet, the party could be about to waste even more.
Yes, John Roberts should be expected to explain his view of constitutional interpretation. Most critically, how does Roberts view the conservative's preferred line of judicial reasoning, known as "original intent" or, lately, as "original meaning"? To illustrate the potential problem, recall that the poster-child opinion for the original intent position was written by Chief Justice Taney in the infamous Dred Scott case, wherein Taney cited original intent as enough reason to read slavery, as private property, into the Constitution. Moreover, libertarians would just love to see the Supreme Court, on the basis of some mythological notion of original intent, seriously narrow the scope of the interstate commerce clause. It all adds up to a very serious issue.
But my guess is that the committee will learn from Roberts, whose judicial temperament and intellect is not challenged, that he embraces a legal philosophy resting somewhere between "original intent" on the one hand and "living Constitution" on the other. Thus Roberts should be confirmed, barring some unforeseen revelation, even though he might not quite agree with the legal scholar, James Boyle, who argues that "original intent" is both the most popular version of conservative legal reasoning and "the easiest to blow out of the water."
Democrats, by facilitating an expeditious confirmation process, would be sending a message both to the president and the country: Be reasonable with us, and we will be reasonable with you.
Such a clear message would have strategic payoff -- after all, reasonableness is an important test of leadership. To the contrary, what degenerated into carping opposition to Bolton or similarly toned opposition to Roberts has no strategic value.
In their must-read book, The Right Nation: Conservative Power in America, authors John Micklethwait and Adrian Wooldridge (both Brits and writers for The Economist) call attention to the Democrats' now three-decade-old malaise, which, they believe, can be traced in part to a failure of the party to distinguish between strategic policy and a laundry list of things to do (or oppose, as is now most often the case). That list has everything to do with pandering to interest groups and nothing much to do with setting direction.
Going to battle stations over "original intent" is worth the fight. Whining about a presidential appointee to a non-policy position, or holding up a court appointment because certain interest groups are left unsatisfied, are both wastes of political capital.
Because they suffer from what I term "terminal silliness syndrome," Democrats often make stupefying errors of judgment. Micklethwait and Wooldridge draw our attention to the party's apex of political nonsense, the 1972 Presidential Convention, where they approved a platform that actually had separate planks on rights of the poor, Native Americans, the physically disabled, the mentally disabled, the elderly, women, children and veterans -- and, the real show stopper, they "devoted more attention to the restoration of constitutional rights to released convicts than to efforts to combat street violence."
I read this and gasped. Can that be? I checked it out. Egads, they had it right. In 1972, the Democratic Party promised ex-convicts the restoration, after release, of rights to obtain drivers' licenses and to public and private employment, and, after completion of sentence and conditions of parole, restoration of civil rights to vote and hold public office.
This in a national party platform? And Democrats actually expected that a public fearful of going out on the street at night would take them seriously?
Strategic consequence -- it is important. Case in point: Consider Newt Gingrich's early-'90s attack on the Capitol Post Office. Gingrich was dismissed by Democrats as a crass posturer and opportunist. But to their dismay, Gingrich was able to effectively use the small post office issue to illustrate his broader, more strategic charge: That Congress was laboring under the corrupting effects of entrenchment.
Oh, by the way, and what did the Republicans write into their platform in 1972? Their idea of rehabilitating released convicts was for every American to get a gun.
Demagoguery, we know, trumps silliness every time.
To effectively confront a lame duck president who now sports a whopping 38 percent approval rating (but who also has a entire team of master illusionists working around the clock), Democrats must propose serious ideas, show responsibility and exercise a modicum of discipline -- three qualities they've been missing lately.
