Today’s retirement announcement by Justice Sandra Day O’Connor, aside from ruining the vacation plans of the people who work for advocacy groups on both sides of the judicial divide, created two immediate political questions. The first is what Bush will do now that he finally has the opportunity to make an appointment that could reshape the Court. I did an extensive post over at TPMCafe predicting he had little choice, and probably even less inclination, to do anything other than give the Cultural Right what it wants: a sure vote to overturn Roe v. Wade. So I won’t recapitulate the whole argument here.But the second question remains open: exactly how much should Democrats, and particularly pro-choice Democrats, invest in trying to stop Bush from doing what he’s probably going to do? More to the point, do Senate Democrats launch a filibuster, risk triggering the “nuclear option,” and pretty much shut down Washington for the rest of the year?Scanning the Left and Center-Left blogosphere today, I was a bit surprised to discover more doubt on this question than I expected.The main reason for debate is the recognition that replacing O’Connor with a Justice determined to reverse Roe would still leave right-to-lifers one vote short, based on the lineup in the last big case where the Court reaffirmed basic abortion rights, Casey v. Planned Parenthood (1992). The confusion on this subject probably flows from a misunderstanding over Justice Kennedy’s dissenting vote in the 2000 Stenberg case, which struck down a state “partial-birth” abortion ban. The decision of leading abortion rights activists to make the “partial-birth” issue a litmus test for qualifying as “pro-choice” led to a lot of commentary after Stenberg that Kennedy had flipped to the dark side. But while Kennedy may support some erosion of Roe on the margins, it’s hard to imagine him contradicting his position in Casey, which flatly accepted abortion rights as a matter of settled precedent.So: the O’Connor replacement is not necessarily a direct threat to abortion rights. But for the same reason, this appointment truly is a crisis point for those who want to overturn Roe. They need to flip the O’Connor vote, maintain Rehnquist’s anti-Roe vote (assuming he’s forced to retire at some point), and then hope John Paul Stevens, who’s 85, will quit before Bush’s second term ends. Otherwise, they’ll have to count on another Republican president to get the job done, and right now, 2008 is hardly looking like a GOP slam dunk.The asymetrical stakes of the two sides on the abortion issue with respect to this particular nomination provides Democrats with several options. They can simply spot Bush a fourth vote to overturn Roe, and focus on the broader constitutional issues particular nominees might pose (this may well be Harry Reid’s strategy in suggesting several anti-abortion Republican Senators that Democrats could accept). They can play rope-a-dope by opposing Bush’s appointment and dragging it out, without resorting to a filibuster. Or they can go to the mattresses.I have no settled opinion at this time about what Democrats should do. But it’s nice for once to have our side enjoying some tactical flexibility, while the all-powerful GOP is lashed to the mast of its alliance with the Cultural Right.
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Editor’s Corner
By Ed Kilgore
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October 22: “Red Dog” Democrats Shouldn’t Expect Big Policy Concessions
While mulling some recent material from The Bulwark, I thought I’d explain something to the converted “Never Trumpers” the outlet represents, and did so at New York:
For a while now I’ve had a guilty-pleasure reading habit: The Bulwark, that semi-official outlet of Never Trumpers who view themselves as having definitively broken with the GOP thanks to their former party’s thralldom to Donald J. Trump. I share its contributors’ belief that they (the tribe usefully described by Miller as Red Dog Democrats) represent not just a self-promoting claque of elite scribblers but a real if marginal faction of the Democratic Party, having burned a lot of bridges on their way out of the GOP. Their views appear to parallel those of a significant number of suburban Republicans and independents who voted Democratic in 2018 and 2020. And given the very close balance between voters of the two parties, as reflected most recently in 2020, Democrats really can’t afford to contemptuously reject any potential adherents, however alien or even repugnant they might find their backgrounds.
So it’s understandable when Bulwark co-founder Charlie Sykes expresses frustration that Democrats refuse to consider their pleas for policy concessions on grounds of holding old grudges:
“The spending. The wokeness. The repeal of the Hyde Amendment. I could go on …
“These are difficult times for folks on the center-right, who’ve tried to join Democrats in a loose alliance to protect the Republic from Trumpism …
“Litmus tests are applied: it’s not enough to be pro-democracy, NTers are also expected to embrace the elements of the progressive agenda — from free community college, to abortion, rent moratoriums, police funding, transgenderism, CRT, social spending, and the candidacy of Greta Thunberg for sainthood.”
Sykes fears it’s all very personal, and warns, “If you cancel moderates/conservatives for their past sins, you don’t have a coalition.”
Here’s the thing, though: It’s not really about the Red Dogs. Yes, I’m sure it’s been tough for them to watch Democrats largely come together around a legislative program that’s significantly more progressive than the one advanced by the Obama administration. But Democrats have been coalescing around the basics of the Build Back Better agenda for some time now. That the famously moderate Joe Biden now embraces it is a sign of how the party has slowly evolved, not some sort of betrayal or surrender to the left. And anyone who paid close attention to the 2020 presidential primaries should have understood that there is less distance between Joe Biden and Bernie Sanders than between Joe Biden and the Joe Biden of the 1990s.
Part of what has happened is simply a resolution of internal conflicts among Democrats that left them defensive and at times incoherent. A classic example is one that Sykes mentioned: abortion policy. For years, Democrats claimed to value reproductive rights even as they accepted significant limitations on them: e.g., the Hyde Amendment, which made abortion services, unlike any other medical services, ineligible for any sort of federal support. That amendment, along with acceptance of some largely symbolic restrictions on rare late-term abortions, and the whole “safe, legal, and rare” messaging introduced by Bill Clinton, represented concessions to a significant bloc of Democratic voters and Democratic pols who did not recognize reproductive rights at all.
That has changed over time. Anti-abortion Democratic politicians are a rare and shrinking breed, and there are now significantly fewer anti-abortion Democratic voters than there are pro-choice Republicans. Most Democrats, including Joe Biden, have made the leap into a more coherent and unified position. They aren’t going to turn back the clock to satisfy ex-Republicans, but they aren’t insisting on a “litmus test” just to annoy or exclude them, either. The same could be said for other policy tenets once beloved by a significant number of Democrats — from fiscal hawkishness to armed interventionism to an openness to “entitlement reform” — that remain attractive to the newest proto-Democrats. As for the idea that Democrats are some sort of rigid ideological cult: Come on, seriously? Look at what’s going on with the attempted enactment of the Build Back Better reconciliation bill. If this is an intolerant and exclusive political party, I’d hate to see a loosey-goosey one try to function. It may just be that the issues Red Dogs fret about may lie outside the still relatively loose bounds of party unity.
This doesn’t mean Red Dogs should despair, but it may mean another painful reevaluation of priorities, recognizing that most have already had to sacrifice a lot of old allegiances and even the habitual language used to make sense of the political world. In many respects, the Never Trumpers resemble their spiritual (and in some cases biological) predecessors, the neo-conservatives. These were people who broke with the Democratic Party out of a conviction that Democratic views on national security made continued party loyalty impossible. But most of them retained many views that horrified their new Republican allies until they accepted the inevitable role of a factional minority and grew to accommodate or even share the policy positions and ideological language of the GOP, which was increasingly dominated by conservatives with their own ideological-consistency demands.
Most Red Dogs have no illusions about the party they’ve left and understand their constituencies are too small to form a third force or demand concessions from a position of strength. Most, I suppose, will get used to the strange and sometimes lurid landscape of the Donkey Party. Others will embrace the posture of the gadfly, the people of no party or coalition. But it’s really not personal. It’s just politics.