Don't Be

Such a defeatist crybaby.

Another side benefit of this is that as you have so aptly pointed out the major parties don't represent most americans. Which means we can use this issue to point out just how much the republicans do not represent most americans. Recently republicans have overreached on just about every issue. The Supreme Court nomination process only provides another chance for them to overreach. What is the possibility they actually will overreach? Very high, because of the fundamental nature of the Republicans.

In fact, Bush's speech today belies the type of overreaching the republicans will most likely attempt because Bush said that he wants a nominee confirmed before the next Court Session begins. This desire is underpinned by the assumption that O'Conner's resignation is effective immediately, which would only be nice if it were true. O'Conner explicitly said she is resigning as soon as her successor can be confirmed. So already you see that Bush is attempting to play mendacious semantic games to attempt to control the nomination process in the hopes of rushing someone like Scalia, or worse, through.

Furthermore, the republican party has a vision for america that is well outside the mainstream. Explicitly, they appear to want some type of pre-New Deal theocracy. The vast majority of americans don't want that type of government. However, within the Republican party, the ideologues demand action taken to impose their nutty vision of america on the rest of us, and if action isn't taken, the right explodes.

In this coming nomination fight, Bush will be placed between the wacky right and normal people. As the elections come ever closer, Senate republicans don't want to be put in a position of appearing to endorse the wacky right. This will be especially the case for Ohio Senator, and Judiciary Committe member, Mike DeWine who is up for reelection in 06. Given the current state of the Ohio Republican party and the current scandals in Ohio, DeWine could be ripe for a ton of pressure to break from his party. Now, I know NOTHING about Mike DeWine, he may not be in such a position, but if he isn't, we (meaning the Democrats) should put him there. Explicitly: Support the president and lose your seat, or support a moderate nominee and keep your seat.

I am sure this calculus of being able to cram a nutjob down the Senate's throat before the elections in an effort to get both the nutjob on the Court and to help protect the Senate Republicans from political fallout of approving said nutjob is driving Bush's stated desire to get a new Court member approved before the Court returns to session in October, despite the August recess.

This nomination fight also gives the Democrats a chance to move towards arguing for the type of inclusive representative democracy you spoke about earlier because the Constitution says that the president shall have the power "by and with the advice and consent of the Senate" to appoint Justices of the Supreme Court. Consequently, not only are we singularly situated to win an argument that "advice and consent" means real advice. We are also situated to argue that "the Senate" means the whole damn body, and not just the 55 person Republican majority. This was the argument we were beginning to make during the "nuculer" option crisis and that we were winning. Now, you are more familiar with political question doctrine than I am, and I mean the elements here, but I cannot see any court EVER interpreting Art. 2 Sec. 2 Clause 1. Which means that in this case, the Legislature, namely the Senate, and through their Senators, the people of this country, are going to get the opportunity to interpret what a section of the United States Constitution means.

Frankly, these are arguments we can win, we should win, and we must win.