I don’t want to start the fur flying with my colleague The Moose, who did a post earlier today explaining why he’d unenthusiastically vote to confirm John Roberts Chief Justice of the Supreme Court. But I definitely disagree; like him, speaking for myself only. To compress The Moose’s argument somewhat, he suggested that Roberts is acceptable because (a) he’s not a crazy person, and (b) Bush won the election, and presidents of either party deserve some benefit of the doubt on judicial nominations.I, too, am happy that Roberts appears to have ruled out paid-up-membership-in-good-standing in the Constitution In Exile movement. But Lord-a-Mighty, I hope we haven’t gotten to the point where the only disqualifier for a conservative Chief Justice would be if he or she openly and defiantly declares that most of the works of all three branches of the federal government over much of the twentieth century violates the Original Intent of the Founders, and must be overturned by judicial fiat.The fruits-of-victory argument is probably more important to the case for accepting Roberts, since it applies to the Democratic presidents of the future as well as to Bush.But I would respond that Bush has already deeply undermined that tradition by (1) refusing any serious bipartisan consultation over his judicial nominations, in sharp contrast with his predecessor, Bill Clinton, who almost certainly took a few names off his potential SCOTUS list to avoid a confirmation fight; and (2) engaging in an open, high-stakes campaign to reshape the Court and U.S. constitutional law through his appointments, with Roberts serving as the linchpin if not the ultimate tipping point.In other words, we are at a moment in which Supreme Court appointments represent a lunge towards Eternal Life for this wounded presidency. If stopping that lunge means sacrificing routine Republican votes for future Democratic SCOTUS nominations, so be it.And that, I would contend, is the most compelling argument against the final and best rationale for not worrying about Roberts: he’s just a one-for-one replacement for Rehnquist, and thus does not change the balance on the Court.That’s true, but Roberts is 50 years old, and since, as I profoundly hope, 50 is the new 30, he therefore represents in all probability at least a thirty-year extension of Rehnquist’s conservative and occasionally counter-revolutionary jurisprudence. Think about this: for the next seven or so presidential terms, SCOTUS will be “the Roberts Court.” This is not something progressives should minimize according to tactical considerations of the nomination in this moment’s political struggles.I do agree that the next presidential nomination to replace Justice O’Connor is even bigger in terms of shaping the future Court. And I don’t think Democrats should be forced to walk the plank to oppose or filibuster Roberts, who will probably get universal support from Senate Republicans.But given this nominee’s enduring significance; the Bush administration’s clear right-wing judicial-activist intentions; and the need to make it abundantly clear that the next nominee, if he or she is to the right of O’Conner, will face obstruction sho nuff–a robust Democratic vote against Roberts would be a very good thing.
TDS Strategy Memos
Latest Research from:
By Ed Kilgore
As a old guy and a history buff, this topic attracted me like catnip, and I addressed it at New York:
Seth Masket did something important and admirable at Politico this week: He examined the historical premise for some advice being offered to President Biden by many voices and found it to be ill-founded:
“Joe Biden needs a ‘Sister Souljah Moment.’ At least, that’s according to the quickly congealing conventional wisdom in Washington. That is, Biden and Democrats are in dire danger of losing control of Congress next year, and the one thing that could save them would be by bashing someone to Biden’s left on matters of race.”
The allusion is to a speech famously made by Bill Clinton in the summer of 1992 (when he had already nailed down the Democratic presidential nomination) to a conference of the Jesse Jackson–chaired Rainbow Coalition criticizing the organization for holding a panel the previous day that included Sister Souljah. The rapper had recently made remarks related to the L.A. riots that some interpreted as promoting the killing of white people (a claim she denied).
Jackson (who had expressed pride in Souljah’s appearance at his conference) was sitting on the stage near Clinton as he spoke and understandably felt blindsided and exploited by what Clinton said. So it has gone down in legend as a “moment” when a Democratic politician pandered to swing voters (and perhaps to white racists) by conspicuously separating himself from Black political activists. And that, as Masket notes, is what some commentators want Biden to do to stem the political bleeding over controversies surrounding racial justice, including Black Lives Matter protests, the “defund the police” movement, and the alleged influence of critical race theory in public-school classrooms.
The principal trouble with the claim Biden can do wonders via a little measured race-baiting, Masket explains, is that it didn’t do Clinton much good in 1992. A lot of factors lifted him to victory that fall, but clearly it was the economy (stupid!) and the temporary withdrawal of Ross Perot from the race that were most important. There is little-to-no evidence that the Sister Souljah “moment” had any particular effect on the contest. Yet the legend persists:
“Is it possible that Clinton got some help on Election Day from his bashing of Souljah five months earlier? It’s possible, but unlikely. Campaign effects just generally don’t last that long. It was a very old story by then, and it’s hard to even discern much of an effect when the story was fresh. Polling that year shows that voters were more likely to trust Clinton on issues related to racial politics, but that was true prior to the Souljah moment, as well.
“So why is it important to interrogate this piece of political lore three decades later? Because clearly many opinion leaders take it as an article of faith that a Democratic president can make himself more popular by bashing advocates for racial justice. The evidence doesn’t really support this, but they make the argument anyway.”
I would go a step further than Masket in debunking the “Sister Souljah Moment” theory. I say this not because I have any insider information on what was going on in the Clinton campaign (or in the candidate’s mind) before he made that Rainbow Coalition speech. But I was an early Clinton supporter and later worked for the decidedly Clintonite Democratic Leadership Council, and I sure didn’t think the incident was mostly about race. Obviously, racists in the electorate probably perceived it that way, though few of them at that point in history were likely to vote for a Democratic presidential candidate. The broader perception at the time was captured by Tom Edsall’s on-site report on the speech for the Washington Post:
“Clinton’s frank remarks seemed designed to demonstrate his willingness to challenge core Democratic constituent groups and to begin to break his image in the public as a “political” person who would bend to pressure from major forces within his party …
“The power of the Perot campaign, and growing public animosity to both the Republican and the Democratic parties, has been interpreted in the Clinton campaign as a powerful message requiring the Arkansas governor to attempt to regain the status of an ‘outsider’ candidacy — a status first lost to former Massachusetts senator Paul E. Tsongas, then to former California governor Edmund G. “Jerry” Brown Jr. and most recently to Perot.”
Indeed, the idea that Clinton was triangulating against Black folks generally on race was not borne out by the reaction from, well, Black folks, other than those very close to the justifiably insulted Jackson, as Steve Kornacki later observed:
“Clinton did not suffer any discernible fallout among black voters; in fact, many black political leaders — some nursing their own grudges against Jackson — used the occasion to throw their support behind Clinton.”
That could be in part because even if you think Clinton was pushing off the left, he wasn’t exactly moving right. In the same speech in which he chastised Sister Souljah for allegedly smiling upon the hypothetical killing of white people for the sins of their race, Clinton sounded some familiar populist themes that were entirely congenial to his audience:
“The speech included repeated attacks on the Bush administration, with a well received line about Vice President Quayle — ‘I’m tired of people on trust funds telling people on food stamps how to live’ — and praise for ‘the real story of Los Angeles — that most people who live in that city did not burn, loot or riot.’”
So what would a more nuanced understanding of the “Sister Souljah Moment” tell Joe Biden?
First of all, Biden is in a vastly different position than was Clinton in 1992. There is no Ross Perot on the horizon, appealing to a huge block of swing voters temporarily estranged from both parties. When Clinton rejected Jesse Jackson’s advice to run a base-mobilization campaign, there were plenty of reasons to fear that identification of Clinton with Democratic orthodoxy would be disastrous: At the time of the Sister Souljah speech, Clinton was running third in many polls behind Perot and George H.W. Bush. And when Perot did (temporarily) withdraw from the race right after the Democratic convention (I was involved in speech preparations for that convention and remember when the word came down: No more criticisms of Perot!), he basically confirmed that Clinton had succeeded in redeeming his pledge to become “a different kind of Democrat,” as the Los Angeles Times explained:
“’When we started … there was a climate there where we could win outright,’ Perot asserted. But now, he said, ‘the Democratic Party has revitalized itself. They’ve done a brilliant job, in my opinion, in coming back.’
:Perot did not elaborate on that point. But Morton H. Meyerson, a longtime Perot confidant and campaign adviser, later cited the Democratic Party’s platform as something that ‘Ross feels good about.’
“Meyerson added: ‘The Democrats seem to be listening to the people.'”
Biden, by contrast is operating in a highly polarized climate with few swing voters and no Perot-like centrist to challenge him. He has zero reason to gamble on separating himself rhetorically from his party.
Second of all, while Clinton was dealing with decades of perceived Democratic subservience to the party’s interest and constituency groups, Biden is dealing with a conservative media environment in which nothing he says will effectively contradict assertions that he wants to defund the police, open the prison doors, impose “woke” speech codes and racial quotas on colleges and workplaces, and usher in a socialist revolution. It’s all preposterous, but Biden has already tried and failed to challenge the smears with rhetorical signals. Some hypothetical equivalent to the supposed message Clinton sent in the “Sister Souljah Moment” would mostly be heard by those who feared, not hoped, he was separating himself from his party under pressure.
And third, even if Joe Biden thought he needed to “push off” the left (as though defeating Bernie Sanders in the 2020 presidential primaries wasn’t enough “pushing off”), he should stay far away from racially inflammatory subjects. Biden would have never won the presidential nomination without the kind of staunch Black support that destroyed the potentially strong nomination campaigns of Kamala Harris and Cory Booker, even though Biden’s history on racial issues was far more problematic than Clinton’s in 1992. Besides, now and in 1992, the idea that “the left” and “Black voters” are somehow synonymous is simply wrong.
If Biden feels the need to make it clear he’s still the moderately progressive Democrat who hates racism but is by no means a socialist or especially “woke,” he should just say so, as often as possible. No “pushing off” is necessary.