Bughouse Politics

Ever play bughouse? It's a chess variant in which two teams, each taking both colors on two boards, play each other. Pieces captured on one board can be placed on the other board in lieu of a move. Our boards today are the Attorney General nomination, and a set of Supreme Court nominations starting with the possibly-soon retirement of Chief Justice Rehnquist. These two fights are closely related, and the Democrats have little political capital to spend. However, if we play carefully, we might be able to capture some from one fight and make a strong stand in the other.

Let's take a look at the circumstances of each fight.

The Attorney General nomination is definitely open. The leading contender is clear: Alberto Gonzales, author of the infamous terror memos which opened the door for the practices at Guantanamo shortly thereafter repudiated by the (current) Supreme Court. This memo can persuasively be argued to have struck a tone of cavalier disregard for Constitutional and human rights which set the example for Abu Ghraib. The last thing I would want is someone like this influencing national law, so the image of him as Attorney General isn't pretty to me. Conservatives, oddly enough, are also uncertain about him -- he's said to be iffy on abortion (that is to say, he's not strongly pro-life and may in some circumstances be pro-choice) and may be accepting of affirmative action. On these issues I (disagreeing with, if I understand correctly, most if not all of the rest of the Nuke Free Zone) am pro-life and not in favor of affirmative action. In other words, I get face-slapped coming and going.

I really don't like Alberto Gonzales.

The Attorney General nomination has several threads connecting it to the Supreme Court nomination(s). One is the possibility that Mr. Gonzales is being put in the Attorney General slot to boost his credentials for a Supreme Court nomination. On the one hand, this would mean two confirmation hearings in short order, leaving very little to be said in the second if he passes the first, so that a second confirmation would almost certainly be smooth sailing. On the other hand, Mr. Gonzales has long had the Attorney General post as a career ambition, and it's not a traditional spot from which to name a justice. If he's named as a Supreme Court nominee, he's not likely to be the first one this term.

Another connecting thread is the consideration of political capital. As one of the first moves after President Bush's re-election, this comes at a time of political strength for the President. He will not want to be defeated in such an early, important act, and this act will make a first impression on the new term. Therefore, any serious filibuster threat, even if the Democrats can maintain party unity and hold the line on defections, would be instantly met with blistering charges of obstructionism. This would draw down the bank significantly for future actions.

On the Supreme Court front, nominations are not necessarily soon or immediate. However, several justices are well past retirement age and Chief Justice Rehnquist has recently been diagnosed with thyroid cancer, so posts on the Court are very likely to open up within this term, possibly before the mid-term elections. Front-runners are foggy. Though Mr. Gonzales has been mentioned, a repeatedly-suggested candidate for the first vacancy is J. Harvie Wilkinson III, of the federal appeals court in Richmond, Virginia. A federal appeals court is a much more traditional place than the Attorney General's post from which to draw a Supreme Court nominee. A bit of research on my own comes up with a couple of books he has written, including One Nation Indivisible: How Ethnic Separatism Threatens America, which jibes well with my views on such social phenomena as race-based gerrymandering and self-segregational tendencies. The New York Times has Wilkinson described as "opposed to abortion," but with a "strong environmental and First Amendment record" that Democrats may find acceptable. For me, of course, all three are positives. Though I'm not enough of a legal scholar to dig through Judge Wilkinson's decisions to analyze how he might rule on the issues surrounding Guantanamo, someone who despises racial categorization and stands up for the First Amendment strikes me as someone who would continue the current Court's stance of laughing out of the building the Administration's feeble attempts to justify using the Bill of Rights as toilet paper.

I really like J. Harvie Wilkinson III.

So where does all this lead? Here's my suggestion for a strategy the Democrats could follow in playing bughouse with the Republicans: when Alberto Gonzales comes up for Attorney General, don't filibuster. He's an unprincipled lawyer that may well be significantly responsible for the torture and abuses that have painted the United States so blackly in the eyes of decent people, but a filibuster threat would be too expensive. If he's so bad, try to get moderate Republicans to agree with you. Leash him so tightly to Abu Ghraib he might as well have been taking the pictures himself. Call for Republicans to cross the aisle and vote against a nominee for our nation's top lawyer that plays havoc with fundamental American ideals of justice. Give the torture memos every second of exposure to the light of day that you can squeeze out of the hearings. Try to make strange bedfellows with hardcore conservatives that are leery of his record on abortion and affirmative action. Save your strength for the Supreme Court fight -- as Attorney General, he would only be doing the same thing the Administration is currently doing, except perhaps a bit more enthusiastically.

Then, if and/or when Mr. Gonzales is nominated for the Supreme Court, filibuster like the nation depended on it (because maybe it does). Point out that you were kind enough to leave off a filibuster, state your piece, and bring him to a fair up-or-down vote in the Senate when the President wanted him as Attorney General, but now it's important, because the Supreme Court has been telling the Attorney General what to go do with himself about all these violations of bedrock American rights and they're the only one that can when the President doesn't. Hold out a real alternative so that you're not seen as obstructionist: Judge Wilkinson, who has pledged allegiance to Constitutional rights and who is acceptable to the President's base was well as to moderate Democrats. If he gets appointed, and Gonzales comes up later, have another alternative ready. Even if something unexpected happens, you'll have hoarded the political capital to be prepared to demand a Supreme Court Justice with respect for the Bill of Rights as your first priority. If events do run their course even roughly as predicted, you get a guy on the Court who will continue their drive to keep the Administration's excesses in check and will have successfully used your minority influence to tilt national affairs without breaking the prerogatives of the majority. If absolutely everything else goes wrong, you will have stood up for real American principles at every step of the way.

If it's not too soon to look at midterm elections, that's not a bad record to have.

Posted by William at November 12, 2004 11:48 AM

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