09/22/2005 03:58 pm ET | Updated May 25, 2011

How Roberts' Confirmation Process Shows What We Should Really Fear

There's been a lot of talk recently about how since Supreme Court nominee John Roberts is replacing fellow conservative William Rehnquist, Democratic votes to confirm him is less momentous. This line of thinking says that Roberts won't change the balance of the court one way or the other, so its really not a big deal.

That argument might actually have a shred of credence for those who support preserving the status quo on the court... except for one thing that Senate Democrats desperately want everyone to forget: namely, that when the archconservative Roberts was originally the assigned successor of swing vote Sandra Day O'Connor (and thus would have changed the balance of the court), Democrats still appeared perfectly willing to support him as well.

That's right, as mentioned in a previous post, there was a period of about a month and a half where Roberts was the nominee to replace O'Connor, and Chief Justice Rehnquist was publicly saying he had no intention to leave the court. O'Connor, as everyone knows, has provided the critical swing/moderate vote on many hugely important issues. That means that during that time, the consideration of Roberts -- a well-known archconservative -- was a consideration of whether to seriously alter the Supreme Court, and thus potentially overturn years of precedent on issues like abortion, civil rights, etc.

And that brings us to what progressives -- indeed, all moderate, mainstream Americans -- should fear coming out of the upcoming votes on Roberts' confirmation. We should fear that Democrats early on showed a willingness to capitulate even when they knew it would dramatically shift the court to the hard right.

Don't believe me that they were capitulating early on? Trying to forget those days to comfort yourself into thinking things will be different when the next right-wing extremist is nominated, this time to really replace O'Connor and really shift the court? Here is just some proof to refresh your memory, and remind you of what top Democrats were saying knowing that the archconservative Roberts was going to replace the moderate critical-swing-vote of O'Connor:

- "Democrats Say Nominee Will Be Hard to Defeat...Democrats seemed increasingly resigned to the notion that they cannot stop [Roberts'] appointment." - Washington Post, 7/21/05, two days after Roberts was nominated to replace O'Connor.

- "It's hard to imagine he can be filibustered. I have to think at least five or six Democrats would be inclined to vote for him. The Republicans start with 55 votes in the Senate and Democrats need to remind themselves of that. Plus, he sounds at least from what we know right now like a decent, thoughtful, reflective guy." - Democratic political consultant and "strategist" Mike McCurry, Reuters, 7/20/05, the day after Roberts' was nominated to replace O'Connor.

- "I'm optimistic and hopeful that he is going to be able to build a broad consensus." - Democratic Sen. Ben Nelson, Knight-Ridder, 7/20/05, the day after Roberts was nominated to replace O'Connor.

- "One influential Democrat said Roberts was 'in the ballpark' of being a nonconfrontational selection. A Democrat on the Senate Judiciary Committee, which will hold hearings on Roberts' nomination, said she did not think the appeals court judge was 'filibuster-able.'" - Associated Press, 7/20/05, the day after Roberts was nominated to replace O'Connor.

- "Senate Democrats admit privately that, barring some sort of political cataclysm, John Roberts is going to be confirmed easily...the conventional assessment here in Washington that he'll have pretty much smooth sailing up on Capitol Hill." - CNN, 7/20/05, the day after Roberts was nominated to replace O'Connor.

Remember, the critical point here is that Democrats were immediately capitulating when Roberts -- a well-known archconservative -- was going to be replacing the moderate O'Connor, not Rehnquist, and therefore was going to radically change the court. I know, I know -- we would all like to comfort ourselves by thinking that Democrats are supporting Roberts now because he switched to replace Rehnquist and thus won't change the court, and that if President Bush nominates another archconservative to replace O'Connor, then Democrats will really put up a fight. But very recent history shows us that even then, they likely will not.

That should be the real fear: that Democrats have been so emasculated that they come up with all sorts of complex sounding political reasons to weasel out of opposing one archconservative (Roberts) in order to supposedly fight another day...but that having gotten so used to capitulating, that other day never comes, no matter what kind of extremist affront comes down the pike.