The Patterico-Bainbridge Debates: A Word From the Founding Father

How's that for a portentous (or is that pretentious) opening?

Once again, our beloved Coalition of the Chillin' is under attack, this time from that famous pontificator, Patterico. As longtime readers know, the Coalition is a loose (very, very loose) confederation of bloggers who felt the reaction to the judicial deal of May 23, 2005, was way overblown. In light of the truly disgusting Kelo decision, Patterico wants to know if the Coalition is ready to disband, and has been engaging the just-appointed Attorney General of the Coalition, Professor Stephen Bainbridge, in just such a debate.

First, as to Coalition membership: SayUncle says he's through chillin' and has officially withdrawn. Earlier, the Anchoress had said she wasn't going to chill anymore, either; that's fine - I like both bloggers a lot and this doesn't affect that one iota. Anyone else who is through chillin' - well, it's not like there are membership dues or anything (but hey, don't think you can just drop out and show up at the kegger!).

As to the substantive issue, i.e., whether Kelo has invalidated the Coalition stance on the judicial compromise, my answer, predictably, is no, it has not. Why?

• There is no such thing as a predictably conservative or predictably liberal judge, as much as we might believe there is. Until that human being, with all his/her shortcomings and foibles, gets on that bench, we can't really say with any confidence how the rulings will go down, particularly on any given case before the Court.
• After years of inaction, Bush has gotten through about a half-dozen very controversial judges after the deal WITHOUT going nuclear.
  
• There is nothing at all in the deal that would prevent the Republicans from going nuclear during the Supreme Court nomination process; all that would be required would be a statement from the leadership that the agreement had been broken because the Democrats were filibustering without an 'extraordinary circumstance'.
• As Professor Bainbridge argues at length, we may want to preserve the filibuster for judicial nominees in the event that the shoe is on the other foot.

Most importantly, though, and the reason I started the Coalition in the first place, is that this fight isn't taking place in a vacuum. I maintained then, and I still hold the opinion, that going nuclear would be a disastrous move for the Republicans in the court of public opinion, and the decisions of that court will have a far more substantial and long-term impact on conservative judges than one justice ever could. Simply put, if we allow ourselves to alienate the electorate through overwrought rhetoric, we lose the electoral advantage of being able to paint the Democrats as obstructionists, and no conservative judges whatsoever will ever be nominated if we lose control of the Congress.

The deal was a win for the Republicans, and Kelo doesn't change that; I argued from the start that if we go nuclear, let's do it in the highest stakes scenario. With the rumors swirling that a justice may retire as soon as tomorrow, we'll find out soon enough who's holding what cards.