NRO Loses Mind Over Specter

As I noted yesterday, presumptive Senate Judiciary Chairman Arlen Specter has sparked a controversy that has been blown out of all proportion. The editors of the National Review appear to have lost their minds completely over what was, to any sane person, a very innocuous statement. It begins with this big lie:

Senator Arlen Specter (R., Penn.), who by virtue of Senate seniority rules is in line to become the chairman of the powerful Senate Judiciary Committee, fired a shot across the president's bow, warning Bush that he would block any judicial nominees that he deemed too conservative.

Bzzzt. Thank you for playing, but that is not what Specter said. He did not say or even imply that he would block any judicial nominees for any reason. Here's what he actually said:

"The president is well aware of what happened, when a bunch of his nominees were sent up, with the filibuster," Specter added, referring to Senate Democrats' success over the past four years in blocking the confirmation of many of Bush's conservative judicial picks. "... And I would expect the president to be mindful of the considerations which I am mentioning."

He was in fact not talking about any nominees he would block, but about the possibility that the Democrats would block more extreme candidates as they did in his first term. It takes 60 votes to end a filibuster and the Republicans have 55. Thus, if you want your judicial nominees to be confirmed and avoid a protracted fight that you may well lose, it's probably a good idea to nominate relatively moderate judges that won't spark such fierce opposition. But apparently the mere mention of this political reality is enough to make the National Review editors scream "TRAITOR!" at Specter. This is a bit like having someone say, "Hey, if you go into that bad part of town, someone might beat you up" and then telling another person, "Oh my god, he said if I went to that part of town, he was going to beat me up." And they're not done yet:

Bush has often said that he does not apply any form of litmus test in choosing judges, apart from their ability to put aside their policy views and interpret the law as written. But Senator Specter made clear that he would apply a specific test. "When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely," Specter told a reporter, going on to compare Roe with Brown v. Board of Education.

But here again, he is talking about the likelihood that a nominee would be confirmed, no mention or even implication of any litmus test that he himself would apply on that issue. And history shows this claim to be patently false. Though Specter is pro-choice himself, he has not only voted for but led the confirmation fights for numerous judges who opposed Roe v. Wade, including Clarence Thomas. Indeed, Specter supported every single judicial nominee that Bush sent to the Senate in his first term, almost all of whom were opponents of abortion. In fact, he has only twice not voted to confirm a nominee sent up by a Republican president. One of them was Robert Bork, for which we should all be quite thankful. They continue:

It is one thing for Specter to believe that abortion should be unregulated. What he is saying is that the voters of no state should be allowed to act on a different view -- and that he will go to the mat to block the confirmation of judges who would allow them a say. And given the incompatibility of Roe with a properly restrained view of the enterprise of judging, Specter's test would eliminate justices who are conservative on other issues as well.

Except that, as we established above, he did not say he would block any such confirmation and he has never had a litmus test on the matter of abortion. So merely repeating this lie doesn't make it any less a lie. Oh, but they're not done yet.


For the social conservatives who just elected Republicans to office for the very purpose of getting sound judges confirmed, Specter's elevation would not just be a symbolic slap in the face but an actual betrayal.

Am I the only one finding all this talk of a "moral mandate" to be highly amusing? First, it's based on faulty numbers on exit polls, as many others have pointed out. But more importantly, they act as though the fact that Bush got 51% of the vote in the election demands that the opponents of any policy he wishes to push through should just roll over and play dead. "How dare you still think you should fight for what you believe in, WE HAVE A MANDATE!", they scream at us mere mortals. I don't know how to break this to you folks, but your imaginary moral mandate to push through repressive policies doesn't mean a damn thing to me, or to anyone else. Reagan won his second term by one of the biggest landslides in American history in 1984, but that didn't help him get Bork confirmed for the Supreme Court in 1986. If you think that Bush winning a slim victory in this election is going to give him the political capital to get a Bork clone confirmed this time around, you're living in a fantasy world.

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Faulty exit polls may show that Americans did not give a moral mandate to social conservatives. But they are going to claim that mandate anyway. Though I respect your opinions enormously, I think that you, along with many other well-intentioned commentators (Sullivan, Brooks) may have been naive to express relief about the exit polls. Those numbers are going to be used exactly as the social conservatives wish--because they're the ones who have the power right now.

Jason wrote:
Faulty exit polls may show that Americans did not give a moral mandate to social conservatives. But they are going to claim that mandate anyway. Though I respect your opinions enormously, I think that you, along with many other well-intentioned commentators (Sullivan, Brooks) may have been naive to express relief about the exit polls. Those numbers are going to be used exactly as the social conservatives wish--because they're the ones who have the power right now.
Well I think there are two different issues. My only point of relief regarding the exit poll numbers was that I think they indicate that most people who are against gay marriage aren't against gay marriage because they just have a deep-seated hatred of gay people. If they did, they would not indicate support for civil union and partnership rights legislation. That makes me feel confident that over the long run (meaning the next 10 to 20 years), our side is gonna win that battle. That really doesn't have much to do with the point you're making, which is quite valid, that the social conservative leadership is going to claim a mandate regardless of the reality. I fully agree with that, and that's why I've gone to the trouble of pointing out that they are wrong. They are trying very, very hard to make the "moral mandate" position into the instant conventional wisdom and get it to harden fast before anyone questions it. I have no intention of allowing them to do so unchallenged, and I'm sure you won't either. As I just wrote, we cannot let the fantasy-based community control the discourse, we must puncture their fantasies with reality.