Legal Affairs is running an interesting debate between Mark Tushnet and Cass Sunstein on whether Senate Democrats should vote to confirm John Roberts. Both make good arguments, though Sunstein brings up the rather provocative point that if Democrats voted en masse against Robertswho does not, from outward appearances, look overly radicalthen it would just set a bad precedent that “contribute[d] to a political atmosphere in which justices identify with the ideological extremes of the country.” Perhaps, although all of these admonitions to preserve comity and bipartisanship in the Senate seem a bit quaint these days, don’t they?
Meanwhile, Ezra Klein offers the semi-optimistic view on Roberts: namely, he’s not offering up the code words many conservatives would presumably want, and a bunch of liberals (male liberals) seem to like him. Well, maybe. At any rate, the prediction that he’ll do a lot of very conservative things on the Court seems like a safe one, the question is whether he’ll do it in leaps and bounds or take his time. Either way, he’s a conservative. What matters from a Democratic point of view is not how they’ll stop himthey can’t and won’t, and killing his nomination wouldn’t lead to anyone “better” getting put upbut figuring out how they can start wining elections again in order to prevent more justices like Roberts from sitting on the courts.