There’s nothing noble about defeatism, and a search through our archives would find exactly none. Hearing Democratic Senators say things like “You are going to be confirmed, and everybody knows that” (Senator John Kerry) and “…before I get to my formal remarks, you no doubt will be confirmed” (Senator Barbara Boxer) during Condoleezza Rice‘s confirmation hearing made me want to change parties. An administration official whose rank incompetence and bureaucratic inexperience led to serious harm (and that was all before her lies to the 9/11 Commission) faced the Senate Foreign Relations Committee, and the first words spoken by two Democrats with standing to address the situation acknowledged the futility of their task. Pathetic.

This country is about to enter a period of partisan conflict more intense than even the current standard. But before gearing up, we must recognize that though George W. Bush did win reelection in 2004, this battle was lost on November 7th, 2000. Anyone who believes that voters would have elected a President with no foreign policy experience in a post 9/11 era is as clueless as the voters who listened to Ralph Nader when he accentuated minor intersections of political philosophy between Bush and Al Gore. Such differences paled when compared to the application of those philosophies, most noticeably in personnel decisions. Though the President’s staffing selections leave much to be desired, the damage they can do (even giving it their all, which they certainly are) is limited to his time in office. But for those of us who first noticed Bush when he named Jesus Christ as his favorite political philosopher (“because he changed my heart“), the 2000 election was all about the composition of the Supreme Court. But lessons like this don’t come cheap. At least partly because he didn’t have the opportunity to install an extremist (or Opus Dei follower) to the high court, along with the accompanying backlash, we’ll all learn it now. Probably twice.

Unlike the confirmation skirmishes against Rice, Alberto Gonzales and John Bolton, who all have records of incompetence and a certain disdain for the rule of law, the Supreme Court battle will likely feature a judge or lawyer who, at worst, can be attacked for his or her views on the law rather than for any specific legal transgressions. The President is quite fond of a little concept someone in his political shop must have spent hours explaining to him, only to see it butchered beyond coherence:

And it’s one of the wonderful — it’s like earning capital. You asked, do I feel free. Let me put it to you this way: I earned capital in the campaign, political capital, and now I intend to spend it. It is my style. That’s what happened in the — after the 2000 election, I earned some capital. I’ve earned capital in this election…

So the President’s “political capital,” such as it is, combined with the power of his office, a solid Republican majority in the U.S. Senate, and up to $50 million from conservative groups like Progress for America are behind whatever creationist federalist corporatist law school graduate is nominated. It’s been a while since I’ve read Sun Tsu‘s The Art of War, but he wrote:

…if they are strong, avoid them…

This war can’t be won with a checkbook, it can’t be won with fancy bar charts, and it can’t be won with yelling and screaming. Senate Democrats could certainly use the filibuster, but unlike Bolton’s United Nations nomination, a Supreme Court vacancy gets top billing and people pay attention. The nominee could be held up, but with the prospect of the nuclear option, likely bad press, and a near bottomless pit of jurists who share the Antonin Scalia / Clarence Thomas view of the Constitution turns blocking a nomination into a lose/lose proposition. The first rule of politics is win or make your opponent pay the price for winning.

Should the Democrats lie down and give a free pass to the administration and nominee? Of course not. Contrary to Republican assertions, Democrats on the Senate Judiciary Committee should make every effort to pin down the nominee’s views on as many issues likely to confront the Court as possible. Lifetime appointments are nothing to trifle with. Jay Bybee, the author of the Justice Department torture memo while he was Assistant Attorney General, is now a federal judge. His memo enabled treatment of prisoners-of-war/detainees that has irrevocably tainted our history, increased hostility towards our country, and provided unlimited fodder for terrorist recruitment. But since his memo (authorizing “cruel, inhuman or degrading treatment” in direct contravention of long-standing laws) was publicized more than a year after his confirmation where he evaded questions about his advice, Democratic Senators couldn’t grasp the full extent of the damage Bybee caused. The result for Bybee is a seat on the 9th Circuit Court of Appeals until he dies or retires. The harm he inflicted on the United States will outlast even that.

Now Senate Democrats find themselves in an awkward position. The “gang of 14″ deal that staved off the nuclear option and preserved the filibuster in May was problematic at best, as I wrote at the time. Six weeks worth of hindsight has proven that agreement to be next to worthless, with only a political loss for Bill Frist preventing the deal from being a total trainwreck. Digby is correct when he notes that with Janice Rogers Brown, Priscilla Owen and William Pryor sitting on federal appeals court benches, the bar for the “extraordinary circumstances” mentioned in the deal is so low that Saddam Hussein would face even odds of being confirmed. But I disagree that Democrats should be welcoming nuclear winter quite yet:

…I want that nuclear option, I need that nuclear option. I’m fucking dying to have that fight. We so-called freaking out liberals have been pushed to the wall.
[...]
I am the last person who is afraid of Bill Frist going nuclear. Like a cornered animal, I’ve got nothing to lose. In fact, it’s my fondest wish. If we could score a knock-out on Bush we might actually open some eyes in this country. And even if we don’t, so what? When you go out of your way to rub your rivals noses in the dirt, particularly when they comprise an army as big as yours, don’t be surprised when they start to see mutually assured destruction as an alternative.

Mutually assured destruction certainly has its time and place. Any philosophy that kept the world’s population alive for four decades can’t be overlooked. But we need to look at this differently. Brown, Owen and Pryor slipped through their confirmation votes illuminated only by the reflected glare of the Senate squabbling and dealmaking. Appellate court fights are below the radar of most Americans and a filibuster there (or nuclear option) would have demonstrated Bush’s extremism before this crucial high court fight. Think of basketball where it took the Pistons-Pacers brawl to get a regular-season game noticed, but the NBA Finals are automatically on national television.

No matter who the administration chooses as their nominee, the Supreme Court battle will be inherently high profile, and a filibuster isn’t needed to elevate it (or maybe lower it) into the public consciousness. The sheer tonnage of attention this fight will attract ensures Democrats enough microphones and cameras to get their message into every home in the land (provided the networks make a better attempt at balance, anyway.) Rather than use that time solely to discredit a replaceable nominee, (even if forcing Bush to go to a second pick caused embarrassment) Senate Democrats should use their share of the spotlight to take the fight to the top. As Democrats, we constantly point to polls that show voters consistently choosing our side on the issues yet voting the other way based on emotion. For the first time in a decade, there is a unique opportunity to draw a contrast between our principles and those of the President, the Republican majorities in Congress, and the nominee. And if there is a better way to attack the fault line between Christian Conservatives and Big Business, I haven’t seen it.

We can get bloody, lose focus on other important issues, spend $50 million and still end up with an abhorrent justice while the only progress we make amounts to convincing ourselves that we’re not completely impotent. Or we can be smart. Not moderate. Not polite. Not appeasers. Not dealmakers. Just smart.

While Democrats on the Senate Judiciary committee and issue groups like Planned Parenthood, People For the American Way and others bang away at the nominee, the Democratic leadership, the national party, and everyone else should make sure we get the most bang for our buck. Spending $50 million to fight this nomination when there is no percentage to it is, quite simply, insane. Howard Dean is trying to build up our state parties. That money would go a long way toward capitalizing on the progress that can be made from a coordinated effort to draw a bright line between what we stand for and what Republicans are trying to do to this country.

We’re facing a battle that we can’t win, if winning means blocking an extremist from taking a lifetime seat on the Supreme Court. Since losing isn’t an option, we need to fight this battle either for Republican blood or for the chance to once and for all expose their toxic agenda. Some blood would be temporarily satisfying (even for this vegetarian), but ultimately empty. Advancing our cause is the best play.

—Related—

Two interesting bits in this New York Times story previewing the battle ahead:

The point person to manage the nomination through the Senate will be Ed Gillespie, a leading Republican lobbyist and the former chairman of the Republican National Committee. Republicans said Sunday that it was unclear whether Mr. Gillespie would have a beachhead on Capitol Hill or in the White House, and whether he would appear on television to attack the opposition aggressively, as he did when he was the Republican Party’s chairman in the 2004 presidential campaign.

and

Senator Mitch McConnell, Republican of Kentucky, is to be the point person on the nomination for the Republican Senate leadership.

Why is the White House using Gillespie to manage the nomination? He’s not a government employee, and as a lobbyist, he has about as many conflicts of interest as can exist. Has Frist really lost everyone’s confidence to the extent that McConnell is running the show for Senate Republicans?