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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March 4: Despite the Criticism, Biden’s Doing Well
After reading a few days worth of carping about Joe Biden’s performance, I decided enough’s enough and responded at New York:
Joe Biden has been president of the United States for 43 days. He inherited power from a predecessor who was trying to overturn the 2020 election results via insurrection just two weeks before Inaugural Day, and whose appointees refused the kind of routine transition cooperation other administrations took for granted. His party has a four-vote margin of control in the House, and only controls the Senate via the vice presidential tie-breaking vote (along with a power-sharing arrangement with Republicans). Democratic control of the Senate was not assured until the wee hours of January 6 when the results of the Georgia runoff were clear. Biden took office in the midst of a COVID-19 winter surge, a national crisis over vaccine distribution, and flagging economic indicators.
Biden named all his major appointees well before taking office, and as recommended by every expert, pushed for early confirmation of his national security team, which he quickly secured. After some preliminary discussions with Republicans that demonstrated no real possibility of GOP support for anything like the emergency $1.9 trillion COVID-19 relief and stimulus package he had promised, and noting the votes weren’t there in the Senate for significant filibuster reform, Biden took the only avenue open to him. He instructed his congressional allies to pursue the budget reconciliation vehicle to enact his COVID package, with the goal of enacting it by mid-March, when federal supplemental unemployment insurance would run out. Going the reconciliation route meant exposing the package to scrutiny by the Senate parliamentarian
,It also virtually guaranteed total opposition from congressional Republicans, which in turn meant Senate Democratic unanimity would be essential.The House passed the massive and complex reconciliation bill on February 27, right on schedule, with just two Democratic defections, around the same time as the Senate parliamentarian, to no one’s great surprise, deemed a $15 minimum wage provision (already opposed by two Senate Democrats) out of bounds for reconciliation. The Senate is moving ahead with a modified reconciliation bill, and the confirmation of Biden’s Cabinet is chugging ahead slowly but steadily. Like every recent president, he’s had to withdraw at least one nominee – in his case Neera Tanden for the Office of Management and Budget, though the administration’s pick for deputy OMB director is winning bipartisan praise and may be substituted smoothly for Tanden.
Add in his efforts to goose vaccine distribution — which has more than doubled since he took office — and any fair assessment of Biden’s first 43 days should be very positive. But the man is currently being beset by criticism from multiple directions. Republicans, of course, have united in denouncing Biden’s refusal to surrender his agenda in order to secure bipartisan “unity” as a sign that he’s indeed the radical socialist – or perhaps the stooge of radical socialists – that Donald Trump always said he was. Progressives are incensed by what happened on the minimum wage, though it was very predictable. And media critics are treating his confirmation record as a rolling disaster rather than a mild annoyance, given the context of a federal executive branch that was all but running itself for much of the last four years.
To be clear, I found fault with Biden’s presidential candidacy early and often. I didn’t vote for him in California’s 2020 primary. I worried a lot about Biden’s fetish for bipartisanship. I support a $15 minimum wage, and as a former Senate employee, have minimal respect for the upper chamber’s self-important traditions. But c’mon: what, specifically, is the alternative path he could have pursued the last 43 days? Republican criticism is not worthy of any serious attention: the GOP is playing the same old tapes it recorded in 2009 when Barack Obama (and his sidekick Biden) spent far too much time chasing Republican senators around Washington in search of compromises they never intended to make. While they are entitled to oppose Biden’s agenda, they are not entitled to kill it.
Progressive criticism of Biden feels formulaic. Years and years of investment in the rhetoric of the eternal “fight” and the belief that outrage shapes outcomes in politics and government have led to the habit of seeing anything other than total subscription to the left’s views as a sell-out. Yes, Kamala Harris could theoretically overrule the Senate parliamentarian on the minimum wage issue, but to what end? So long as Joe Manchin and Kyrsten Sinema oppose the $15 minimum wage, any Harris power play could easily be countered by a successful Republican amendment to strike the language in question, and perhaps other items as well. And if the idea is to play chicken with dissident Democrats over the fate of the entire reconciliation bill, is a $15 minimum wage really worth risking a $1.9 trillion package absolutely stuffed with subsidies for struggling low-income Americans? Are Fight for 15 hardliners perhaps conflating ends and means here?
Media carping about Biden’s legislative record so far is frankly just ridiculous. Presumably writing about the obscure and complicated details of reconciliation bills is hard and unexciting work that readers may find uninteresting, while treating Tanden’s travails as an existential crisis for the Biden administration provides drama, but isn’t at all true. The reality is that Biden’s Cabinet nominees are rolling through the Senate with strong confirmation votes (all but one received at least 64 votes), despite a steadily more partisan atmosphere for confirmations in recent presidencies. The COVID-19 bill is actually getting through Congress at a breakneck pace despite its unprecedented size and complexity. Trump’s first reconciliation bill (which was principally aimed at repealing Obamacare) didn’t pass the House until May 4, 2017, and never got through the Senate. Yes, Obama got a stimulus bill through Congress in February 2009, but it was less than half the size, much simpler, and more to the point, there were 59 Senate Democrats in office when it passed, which meant he didn’t even have to use reconciliation.
There’s really no exact precedent for Biden’s situation, particularly given the atmosphere of partisanship in Washington and the whole country right now, and the narrow window he and his party possess – in terms of political capital and time – to get important things done. He should not be judged on any one legislative provision or any one Cabinet nomination. So far the wins far outweigh the losses and omissions. Give the 46th president a break.