Brendan Nyhan

On Tuesday, I predicted that John Roberts will be easily confirmed (see here and here). Today, Richard Cohen, a reasonably influential left-of-center pundit, agrees in the Washington Post, but his reasoning is bizarre:

Another hanging chad has dropped. His name is John G. Roberts Jr., and he undoubtedly will turn out to be opposed to abortion rights, affirmative action, an expansive view of federal powers and a reading of the Constitution that takes a properly suspicious view of the state’s embrace of religion. In these and other matters — the death penalty, for instance — he is expected to substantially reflect the views of George W. Bush, the man who nominated him to the Supreme Court, because that was what the election of 2000 and its sequel were all about. You hang enough chads, and you get to change the Supreme Court…

It seems to me that it is the Democratic Party that has a problem. It can either come to terms with reality or appear, to much of the country, both petulant and in the grip of special interests, particularly the pro-choice lobby. In effect, the fate of this nominee was settled back in the year 2000 when Florida, for better or for worse, squinted hard and pronounced George W. Bush its winner. The chads have spoken.

What does the 2000 election have to do with Roberts’ nomination? If John Kerry had won in November, he would be appointing O’Connor’s replacement right now. And the fact that Bush won both elections doesn’t mean he gets to put whoever he wants on the Court. What a dumb column.

Today, Elizabeth Bumiller reports in The New York Times that George W. Bush wasted time asking a potential Supreme Court nominee about how much he exercises:

When President Bush sat down in the White House residence last Thursday to interview a potential Supreme Court nominee, Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, he asked him about the hardest decision he had ever made – and also how much he exercised.

“Well, I told him I ran three and a half miles a day,” Judge Wilkinson recalled in a telephone interview on Wednesday. “And I said my doctor recommends a lot of cross-training, but I said I didn’t want to do the elliptical and the bike and the treadmill.” The president, Judge Wilkinson said, “took umbrage at that,” and told his potential nominee that he should do the cross-training his doctor suggested.
“He thought I was well on my way to busting my knees,” said Judge Wilkinson, 60. “He warned me of impending doom.”

Bush may deride academic expertise, but he sure cares about how much people work out. According to the Washington Post, Larry Lindsey’s failure to get in shape was part of the reason Bush soured on Lindsey before forcing him out in 2002:

Lindsey, a former Federal Reserve governor, was at loggerheads with O’Neill as the administration devised a package of tax cuts that is to be a centerpiece of Bush’s legislative agenda next year. Bush blamed Lindsey for many of the administration’s economic missteps in recent months and even complained privately about his failure to exercise, aides said.

Looks like the big tent isn’t big enough for all of the overweight people out there. And they say the administration looks like America…

It should become pretty obvious in the next few days that John Roberts is unlikely to be defeated. Game theory says that players should anticipate their rivals’ next move and play their best response to that move. So if the Democrats play like game theorists, they may focus on laying down a series of markers for any future confirmation hearings for justices nominated to replace William Rehnquist, strengthening their hand for the next round in the game. That assumes, of course, that they don’t have to engage in kamikaze attacks against Roberts for the benefit of the liberal interest groups that are already calling for his head.

Update 7/20: Scott Ferguson rightly asks me to explain “laying down a series of markers,” which was more than a little obscure. What I mean is that Democrats might gear their questioning strategy toward a) reasserting their right to try to block objectionable nominations and b) setting a series of precedents and standards that might trip up a future Rehnquist replacement. The next nominee will be expected to answer any questions that Roberts answers now; any stands Roberts takes now will make more conservative stances taken later look extreme; and so forth. I’m not sure it will work, but it seems like their optimal strategy.

Michael Tofias also suggested to me that President Bush might be looking forward to the next judicial battle in the same way. If he doesn’t want to nominate someone who’s not currently on the Court for Chief Justice, he puts Roberts on the Court now and gets a quick confirmation. Then, when Bush is replacing Rehnquist, he can put up someone who’s battle-tested and less controversial than Scalia or Thomas. It’s quite possible.

Update 7/21: Guest-blogging on WashingtonMonthly.com, Lindsay Beyerstein advocates a forward-looking strategy along the lines of what I forecasted above:

Bush will confirm a conservative judge. Barring some shocking revelation about Roberts, I don’t think it would be worthwhile to filibuster him. The next nominee would probably be equally bad. It’s far wiser to stiffen up our own discipline. First, we use the confirmation process to draw attention to critical issues. Second, we send a message to Bush: this far and no further.

A unified Democratic party will send a powerful message. There will probably be at least one more confirmation battle during this administration. If we aren’t strong now, the Republicans will be emboldened to nominate an even more extreme candidate next time.

On his Altercation blog today, Eric Alterman is the latest liberal to repeat the canard that approving an anti-choice justice means that Roe v. Wade is doomed, joining Eleanor Smeal, Atrios and Josh Marshall :

Anyway, the Roberts nomination seems to mean we should plan on saying goodbye to thirty-two years of life under Roe, which is not entirely a bad thing, even for pro-choice advocates. After all, Bush did terrific with unmarried women without college educations. It would be helpful, politically (and democratically) for them to learn just what it was they were voting for.

Even if Alterman means that Roe will be curtailed rather than repealed, his language clearly gives a false impression.

As political scandals develop, establishment moderates are the canaries in the mine shaft. When they get upset, you’re usually in trouble. So it’s important that David Ignatius, a centrist foreign affairs columnist for the Washington Post, blasts Ken Mehlman’s use of the “Big Lie” to defend Karl Rove in his latest column:

In place of accountability, the Bush White House has embraced the three-pronged strategy of attack, attack, attack. If anyone had forgotten how these trash-the-enemy rules operate, Republican National Committee Chairman Ken Mehlman gave an astonishing demonstration on Sunday’s talk shows. Mehlman had a tough case to argue, given uncontroverted evidence that (a) Rove had been a confirming source for columnist Robert D. Novak’s initial story that the man who was making trouble for the White House on its arguments regarding weapons of mass destruction, Joseph Wilson, was married to a CIA employee and (b) Rove was the initial source for Time’s Matthew Cooper on information that Wilson’s wife worked at the CIA on WMD issues.

Mehlman didn’t bother to defend the indefensible. He attacked. “Democrat partisans on the Hill have engaged in a smear campaign where they have attacked Karl Rove on the basis of information which actually vindicates and exonerates him, not implicates him.” Now, I’m sorry, but that’s about as close to the Big Lie as we get in American politics. It’s like claiming that the blue sky overhead is actually some other color — and then challenging the dissenter to prove it’s blue. Mehlman’s comments have the effect of undermining the shared ground on which government operates.

The last sentence is crucial. When people deny obvious facts, it undermines the possibility of rational debate. We repeated that point over and over again at Spinsanity, so it’s good to see Ignatius make it.

News reports are already playing up the “demeanor” of John Roberts as a selling point. But isn’t this a silly way to judge a person in politics? George W. Bush’s 2000 campaign was largely based on how his demeanor was different than conservatives like Newt Gingrich, and it fooled a lot of people into thinking he was a moderate. We can only judge a politician or a judicial nominee based on what they have said and done in the past. Whether they have a friendly demeanor or a “good heart” is irrelevant.

Per my post below, this is over before it begins. Roberts was approved by unanimous consent on the Senate floor in 2003 after passing the Judiciary Committee on a 16-3 vote. Given that he just went through the confirmation process, it’s extremely unlikely that anything will turn up that would allow the Democrats to defeat him, but I’m sure we’ll hear lots of hysteria from the liberal interest groups anyway.

The pick is interesting from another angle, however. As Ed Kilgore noted, Roberts served as deputy solicitor general under Bush I, was nominated for the federal bench by Bush’s father, and served as an adviser to Jeb Bush during the Florida legal battle in 2000. Bush appears to view a track record with him and his family as an acceptable way to demonstrate one’s bona fides (see Dick Cheney, Alberto Gonzales, Colin Powell, Margaret Spellings, etc.) — part of his general tendency to favor loyalty and machine politics over doctrinaire conservatism. Roberts was not the top choice of DC conservatives, but he has a history of loyal service to the Bush family and he’s likely to be confirmed at little political cost. It fits the pattern.

Update 7/21: This post was updated to clarify that Roberts advised Jeb Bush, not George W., during the Florida legal battle.

I can’t understand why liberals are acting like they will be able to block President Bush’s Supreme Court nominee. No matter who Bush picks, he or she is likely to be confirmed. As James Taranto pointed out, “[n]ot since 1968 has the Senate blocked confirmation of a Supreme Court nominee while the president’s party held a majority — and that was a lame-duck president
and a very different Senate.” Matthew Yglesias recently made a similar point, noting that “[t]his is basically a battle the Democrats lost last November — you can’t block bad stuff if you don’t have the votes, and Democrats don’t have the votes.” It’s the same pattern we’ve seen over and over again since 2001 — the combination of Republican votes and vulnerable red state Democrats is virtually unstoppable.

The problem is that we tend to forget the underlying factors that drive most political outcomes. We tend to attribute the defeat of judicial nominees to various scandals or ideological positions rather than the configuration of the Senate relative to the presidency. But many of those nominees would have been confirmed under different circumstances. “Scandals” are largely the creation of institutions. Congressional committees and the media investigate nominees, creating the raw material for scandal, and political parties provide a mechanism for coordinating opposition to a nominee around a set of talking points. If enough people don’t agree that a scandal exists, then it doesn’t exist. Conversely, as we’ve seen many times, “scandals” can be manufactured out of virtually nothing.

The same reasoning applies for presidents. Consider the difference between 1995-2000, when Bill Clinton faced a hostile Congress that investigated him mercilessly, and 2001-2004, where the Democrats have been powerless to use committee resources to investigate the Bush administration except for a brief period when they controlled the Senate. “Scandal” production was much higher from 1995-2000 for reasons that seem unrelated to the relative conduct of the two administrations.

What’s ironic is that Republicans surely realize they are likely to win, but they have no incentive to say so, because it only raises expectations of victory. Portraying the fight as difficult makes it possible to declare a great victory when President Bush triumphs in the end — a boost they need given how badly he has been pounded over the last few months.

On Tapped, Matthew Yglesias takes on the excellent New York Times series uncovering massive Medicaid fraud in New York (part 1, part 2):

TWO CHEERS FOR WASTE AND FRAUD. This is a bit awkward, but I feel compelled to raise a red flag about The New York Times’ decision to run a multi-part series on waste and fraud in Medicaid at just the moment when waste and fraud in Medicaid is being used as a pretext for efforts to gut the program. It would be silly to deny that waste and fraud exist, or that it’s legitimate for journalists to cover such stories, but questions of timing and context exist as well.

Realistically, waste is an endemic feature of human affairs…. The overwhelming odds are that the cuts being planned and proposed at the moment will have bad consequences for poor people’s health care and minimal effects on actual abuse. Journalists do their readers a serious disservice when they obscure that reality.

Of course, it’s true that reporters should put the waste, fraud and abuse issue in a political context, but that’s not the purpose of the stories in question. And that’s ok. The Times stories Yglesias is criticizing are classic muckraking showing how taxpayer dollars are being misused. More generally, Yglesias makes much of the fact that we can’t get rid of all waste, fraud and abuse, but that doesn’t mean we shouldn’t try to minimize it whenever possible. Bill Clinton showed that efforts to tackle waste increase confidence in the ability of government to do good. The lesson of welfare reform is that if liberals won’t confront these problems, they are more likely — not less — to lose the political fight over the program in question.

Correction 7/20: I accidentally wrote “Medicare fraud” instead of “Medicaid” in the title. Oops. Maybe this means there’s a job for me in the Bush White House…

Like me, Bob Somerby is worried about the way liberals are sliding down the slippery slope of spin.

He first quotes from Paul Krugman’s column Friday:

[W]e’re not living in the America of the past, where even partisans sometimes changed their views when faced with the facts. Instead, we’re living in a country in which there is no longer such a thing as nonpolitical truth.

But this problem is hardly limited to conservatives, as even Somerby points out: “No question— conservatives pundits recited bogus claims last week, as they’ve done for years and years. But today we ask a further question— is a similar habit of thought developing now on the left?”

He cites a recent Josh Marshall post as an example:

We refer to this Saturday post by Josh, which attempts to explain (away) an obvious mistake Joe Wilson made all through 2003. Throughout that year, Wilson insisted that Dick Cheney had surely seen an official report about his trip to Niger. He was “absolutely convinced” of this, Wilson said on Meet the Press the day his New York Times op-ed appeared. Throughout the year, Wilson battered Cheney for daring to say that he hadn’t seen such a report. By now, pretty much everyone, including Wilson, agrees that no such report went to Cheney’s office. In his post, Marshall was explaining (away) Wilson’s mistake.

Because remember—
in the America Krugman described, your side can never be wrong about anything; your side can’t make a mistake. “There is no longer such a thing as nonpolitical truth,” Krugman complained; indeed, “the faithful will follow the twists and turns of the party line with a loyalty that would have pleased the Comintern.” We think it would be a tragic mistake for liberals to begin behaving this way—
but we were forced to think of Krugman’s description when Marshall explained (away) Wilson’s error.

Why did Wilson turn out to be wrong on this matter? Why didn’t the CIA send a report about his trip to Cheney’s office? Marshall asked this question in his post, saying “this actually is a relevant fact in understanding the story.” Then he gave the following answer—
an answer which really did shock us:

MARSHALL (7/16/05): The explanation confected by the authors of the SSCI [Senate Select Committee on Intelligence] report was the rather contradictory one that either Wilson’s trip generated no substantive information or that it in fact tended to confirm suspicions of an illicit uranium traffic between the two countries. No one who’s looked at the evidence involved believes that. Nor is that cover story compatible with the CIA’s subsequent and repeated attempts to prevent the White House from using the Niger story.

Why didn’t the CIA send a report? We’ll summarize Marshall’s full answer below. But according to Marshall, the authors of last summer’s SSCI report “confected” a “cover story” when confronted with that question. Just how fake was their “cover story?” This fake: “No one who’s looked at the evidence” believes at least one part of their story! Josh goes on to explain his claim further (see below), but that’s his claim about the Senate report. And that’s the claim that we found shocking—
and the claim that recalled Krugman’s piece.

Why was Josh’s claim so shocking? Because of what he didn’t tell readers. After all, who were the authors of that “confected” “cover story?” The SSCI report was unanimously presented by seventeen senators, eight of whom are major Democrats.