Posted 8:35 AM by Robert

Don't Wanna Brawl

John Roberts' nomination glides on a frictionless surface towards confirmation by the full Senate while some, including many in the mainstream media, warn that the next Supreme Court nomination will face increased turbulence from liberal Republicans as well as Democrats. Senator Specter, for example, has been widely quoted as saying, "I think that there's been a lot frustration on this one, and it's been commented upon very broadly and I think that frustration may well be vented on the next nominee." Even conservatives who deplore the very real irregularities of the Roberts confirmation say thins are just going to get worse, with Melanie Kirkpatrick putting it this way in OpinionJournal:

John Roberts's confirmation may be the exception that proves Judge Jones's rule. During his hearings, Sens. Arlen Specter and Dianne Feinstein asked insulting questions about his Catholicism; Ted Kennedy called his Reagan-era writings "mean-spirited"; and several Democrats roughed him up over his views on civil rights. By modern standards, that's a love fest. But the next confirmation is another matter.

Senate conservatives are also said to be spoiling for a fight:

"If the president doesn't nominate a solid nominee, that is going counter to what he campaigned on," Mr. Brownback said. And if such a nominee "involves a contentious battle, then let it be."

"I think you are going to see a contentious battle regardless of who is nominated," he added, "even if it is Judge Roberts's twin brother."

Is that right? Will the next nomination result in a donnybrook far beyond the Roberts micro-dustup ?

No. Or, rather, almost certainly not on the basis of any conservative ideology of the nominee.

There are several factors that will probably prove determinative in suppressing a brawl. First, the great majority of United States Senators personally don't want to brawl viciously with their colleagues. Most people don't become Senators to brawl. They deliberately chose an office that faces re-election only every six years expressly to avoid election brawls. They are members of an organization often compared to a swank, private club - and that is still true despite some erosion in recent years. But it's those big eroding moments that stick in the Senators' minds, and those memories make a new eroding moment highly unlikely.

Above all, the overwhelming majority of Senators don't want another Bork-type-blow-out. No way, no how. Robert Bork was not just another ultra-competent D.C. Circuit blowhard. He was - and, really, still is - one of the Washington "in crowd." Following his disastrous nomination he did not go away. He wrote books about it, lots of them. Worse, he had and has lots of friends in that same "in crowd" Washington circuit, and those friends made cocktail parties, dinner parties and God-knows-what-other-parties, very uncomfortable for everyone involved in The Original Borking. In fact, they're still at it.

That there are few things desired less by a United States Senator than the outcome of The Original Borking is probably the biggest reason there was, and could be, no Borking of John Roberts: The outcome of a Borking of John Roberts would have been even worse for the Washington party circuit, the personal lives of the Senators and the "collegiality of the Senate" than The Original Borking. At least with Robert Bork one could fall back on the fact that while the man was and is smarter than almost anyone, and incredibly competent, he was all too willing to tell one exactly that in no uncertain terms and in just about any setting. And he still is - look at those books! In short, Robert Bork is and always has been personally unbearable for many, many people. But John Roberts is a sweetheart! One can only imagine the collective trepidation of the United States Senate as it contemplated 20 or so more years of social life plagued by personal friends of John Roberts absolutely savaging Democrats who had participated in such a latter-day Borking, and tongue-lashing every Republican perceived as not having done enough to stop the abominations. The Senate minds must have reeled anew - other than those such as Ted Kennedy's so pickled that they reel all the time.

The "Gang of Fourteen Agreement" also makes a real blow-out Borking unlikely in the near future. The Washington Post reported on what that Agreement means for Supreme Court appointments:

[E]ven if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews. The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.

So that deal apparently prohibits recourse to all of the most important ideological and jurisprudential criteria the Democrats need to satisfy their now-frantic constituencies, such as NOW. Indeed, if what the Post reports is correct and holds up in the Senate, Mr. Bush can choose anyone he wants, so long as he chooses a candidate of impeccable personal ethics and character. (By the way, the Gang of Foourteen Agreement is itself a already product of the first "collegiality" factor described above.) If Mr. Bush abides by all that, and chooses such a person who is also a pleasant, well-connected Washington insider, a woman and/ or a minority, it's very hard to see how conservative ideology will be enough to propel this next confirmation into a Senate donnybrook.