February 1, 2006

Novel Idea for Democrats: Try Winning

Sen. Barack Obama, D-Illinois, has a novel suggestion for Democrats who want to prevent conservative judges from being confirmed: Try winning elections.

Ha. Easy for him to say. Everyone doesn’t get to run against the likes of Alan Keyes. (Then again, there are 49 more states where Keyes can give it a carpetbagging shot. The possibilities are endless.)

Winning does not come easy for Democrats these days, but Obama’s gameplan has to be better than the one his party has been trying lately. Consider:

-          Pre-2004 election attempts to filibuster mere Court of Appeals appointments not only cost the Democrats their Senate leader, Tom Daschle (wait, is that really a problem?), but failed to stop most of the nominees in question anyway, as all but a few eventually ended up on the bench as a result of recess appointments or the Gang of 14 compromise.

-          Attempts to portray Samuel Alito as a dirty racist who digs full-body cavity searches of 10-year-old girls not only failed to persuade anyone, but had the added disadvantage of giving considerable national TV airtime to Ted Kennedy, Chuck Schumer and Joe Biden. In a flash, voters who handed gains to Republicans in the last three congressional election cycles were reminded of why they did so.

-          Accusing Alito of supporting presidential powers in war time doesn’t seem to have raised the ire of the public, polls show – quite possibly because those same polls show the public supports these same presidential powers, and is curiously unscandalized by the thought of the National Security Agency intercepting calls to and from members of Al Qaeda.

-          Getting so personal and vitriolic that Mrs. Alito left the room in tears . . . gosh, it seemed like a good idea when they drew it up in the war room!

So as hard as it must be to abandon this promising strategy, Obama suggests that Democrats actually try winning for a change – a thought already on the mind of his red-state colleagues Ben Nelson, Tim Johnson, Kent Conrad and Robert Byrd, who voted on Tuesday for Alito’s confirmation.

But winning Senate seats – even winning a majority – may not be enough to get Democrats off this hook, especially if they insist on continuing their agenda of opposing appointments made by men who just finished beating them in presidential elections. Under this scenario, even with a Senate majority, they would still have to justify defeating well-qualified candidates, and they cannot very well make the case that ideological disagreement is grounds for a confirmation defeat – not after their Republican colleagues gave overwhelming support to Clinton nominees Ruth Bader Ginsburg and Stephen Breyer on the basis of qualification trumping ideology.

Nor can they make the case that the Court is required to maintain some sort of philosophical balance – the moderate-must-replace-the-moderate argument they attempted to apply to O’Connor’s retirement – when they had no qualms about replacing conservative Byron White in 1994 with the liberal Ginsburg.

Democrats could attempt to make the only case in which they would actually be honest, and that would be this: Liberals depend on the courts to do things that elected legislatures will not do – like declaring rights to apply to their favored and usually aggrieved constituencies. But being honest about their actual agenda is probably a far more radical approach than the Dems are ready for, so it's back to the idea of winning.

But winning what? There is only one kind of election that actually has a chance of helping Democrats put more liberals on the courts, and it's the kind where you don't get to run against Alan Keyes.

Perhaps this is what Obama was getting at. Perhaps he was subtlely lamenting his party’s recent decisions to nominate the likes of Al Gore and John Kerry, and looks just as grimly on the prospects of the likely 2008 contenders. Perhaps Obama has become convinced, like many others in Washington, that his legal first name is really Democratic Rising Star Barack, and that his 72 percent showing in the 2004 election really wasn’t just because he was running in very blue Illinois against a raving red lunatic from Maryland.

Winning the presidency still seems a bridge awfully far for a party worried about Al Qaeda’s phone privacy in the post-9/11 era, but at least Obama recognizes that his party would better off appointing judges than hopping from one strategy to another to oppose someone else’s appointments. They can start by trying to make the case that liberal judges are just what America needs, rather than trying to make the case that conservative judges are the love children of Darth Vader and the Catwoman. Any more of that, and the entire nation will burst into tears and beg not to have to watch.

This is Column # DC18. Request permission to publish here.