Righties have a remarkable capacity for bullshitting themselves, which is why some of them may actually believe Sam Alito doesn’t have an “agenda.” After all, returning women to the same legal status as dependent children is only doing what nature and the Founding Fathers intended, isn’t it?
Last night on cable TV various spokespersons for the Right — such as former Solicitor General Ted Olson on Hardball — mustered their best authoritative tones to declare that ol’ Sam could be counted on to rule on the law, not on his personal opinions.
And what is the law? Whatever the Bush Administration says it is, of course. Perry Bacon and Mike Allen wrote for CNN.com:
[Alito] was part of the Litigation Strategy Working Group, a team of about a dozen officials that Attorney General Edwin Meese appointed to help embed Reagan’s philosophy more deeply into the legal system. In a 1986 memo to the group, Alito proposed to have Reagan issue “signing statements,” defining exactly how the President understood a law’s meaning, when he approved a bill that Congress had passed. Reagan issued such statements occasionally, but the Bush Administration has dramatically expanded their use. In one issued two weeks ago, which infuriated both Democrats and Republicans, Bush suggested he would reconsider a recently passed torture ban if he felt there was an imminent national-security threat.
We’ve also been reassured that Alito is a man who respects precedent. As an appellate judge he even ruled against abortion restrictions because of precedent. And that’s true. In Planned Parenthood of Central New Jersey v. Farmer, where he sided with Planned Parenthood: “Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.” But that doesn’t tell us what he’ll do when he’s not on a “lower court,” does it?
So let’s just say I’m not reassured.
Dahlia Lithwick provides yesterday’s game highlights at Slate:
There aren’t a lot of other surprises today: Republicans go on and on about how easy it is for judges to know what “the law” is and what “the Constitution” requires, while Democrats rave about the centrist pragmatism of Sandra Day O’Connor. Not one Democrat on the committee, by my count, misses a chance to quote her “blank check” line from the Hamdi opinion. Senators Sam Brownback, R-Kan., and Tom Coburn, R-Okla., stage a little abortion-off, in which each fights to become the Most Pro-Life Man in the World (for anyone scoring at home, Coburn does not actually cry this time, but he does sniffle audibly). Frank Lautenberg, D-N.J., agrees to introduce Alito, which he does graciously, but then stops short of endorsing him. Democrats fret about executive power in wartime, while Republicans are seemingly too worried about the threat of the Imperial Court to be bothered by the reality of an Imperial Presidency.
For liberals, there is no question that Alito should not be confirmed. But we are faced with two other questions: Can we stop the nomination, and if so, how far should we go to stop it?
Jane Hamsher answers question one with a big yes.
Strip Search Sammy is an altogether different beast than John Roberts, and his hearing comes at quite a different time. The public is starting to get their first tastes of the corruption scandal growing like a cancer on the Republican party who are vulnerable just at the time they are the most visible. Despite his bluster, John Cornyn is rightly terrified that the free pass given him by the press in the Abramoff matter will end any day now. He’s not the only one. There is considerable cover for an attack that didn’t exist only months ago.
And Alito himself is personally unappealing. Stiff, humorless, and comes off as a bit of a weirdo. People like Ron Wyden were afraid to go after Roberts because he was likeable, and Joe Biden learned to his peril that shredding the “nice guy” is the wrong place to try and make your bones. There is an opening for Democrats to capitalize on this as they try to tie unpopular Bush measures like the illegal NSA wiretaps to Alito’s tail like a tin can.
And the RNC knows it. Ken Mehlman himself is meeting today with Malkin, Hugh Hewitt, Cap’n Ed, Red State, Political Teen and others to try and control the quite critical message in the blogosphere, and seeding the notion of inevitable failure into the opposition narrative is one of the tricks that plays well for the GOP.
Is the DNC meeting with leftie bloggers? If so, I’m not on the invitation list. But let’s go on … Eleanor Clift argued in November that Democrats should not go to the mattresses over Alito:
Democrats should mount a tough fight and expose Alito and his conservative cheerleaders so the voters know what theyâ€™re getting. Highlight the ruling where Alito said Congress has no power to regulate machine guns under the commerce clause of the Constitution. Play the abortion card–but stop short of a filibuster. With President George W. Bushâ€™s approval rating at 35 percent in the latest CBS poll, Democrats have finally sprung to life. Thatâ€™s a good thing, but a bruising battle over cultural issues is better for Bush than for the Democrats. Rather than risk the filibuster in an unwinnable fight over Alito, Democrats should save it for when and if that awful day arrives when the most liberal member of the court, John Paul Stevens, 85, steps down while Bush is still president.
In other words, Clift calls for a strategic redeployment. One does wonder how bad a nominee has to be before we take a stand, though. We’re gonna redeploy our butts off a cliff one of these days. And what about the F word — filibuster? Via Scott at Lawyers, Guns and Money, Matt Yglesias has switched sides and is arguing against a filibuster. Sam Rosenfeld at TAPPED sounds discouraged:
[I]t’s hard to shake a sense of fatalism here. To state the obvious, the political scene in the last few months has been unusually packed with other issues that have prevented any kind of serious anti-Alito momentum from gathering real head-steam. Democrats clearly feel that they are enjoying quite a bit of momentum at the moment on a number of other fronts and are reluctant to risk losing it in an uphill nomination fight that could merely polarize partisans along familiar and not-particularly-beneficial lines. This isn’t the bravest kind of tactical logic — and of course pointing to the “lack of momentum” in one fight or the other is always a circular way of rationalizing not working to build that momentum — but I still find it pretty compelling. That’s because the Supreme Court “fights” we’ve seen so far in the last half year have already revealed the basic mistake of the longstanding conventional wisdom that post-Breyer nomination fights would inevitably be gonzo partisan battle royals. In fact, we’ve relearned that the presidency enjoys an immense degree of built-in advantage and deference on nominations that makes effective opposition prohibitively difficult, except under very rare circumstances. (This is all particularly true when the opposition party is the minority in the Senate.)
Moreover, the constant refrain that “it all comes down to the hearings” and that the whole dynamic of the fight might change this week seems delusional. The Roberts hearings should have made it abundantly clear that the most disgraceful amount of obfuscation and unjustifiable dodging in no way endangers a nominee’s prospects for confirmation. Roberts’ performance sparked unanimous Democratic grumbling about his giving short shrift to the Senate’s role in the process — and then a bunch of Democrats voted for him. Just because the logic compelling Alito to be forthcoming is even more air-tight and unanswerable doesn’t mean he will, in fact, be forthcoming. Democrats are unlikely to find it a politically compelling proposition to mount a filibuster mainly on procedural grounds, but without that threat there’s no leverage to get Alito to actually say anything.
I’ve heard suggestions that the Bushies want a tough fight against Alito, because it would take attention away from Jack Abramoff and the NSA scandal. On the other hand, the NSA scandal is very much part of why Alito is a frighteningly bad candidate for the SCOTUS. Alito should be compelled to express an opinion on Bush’s “war powers” and whether the 4th Amendment still applies. And I say the Dems should filibuster his ass until he does.
Finally, if the Dems need some new talking points, they should consult the Blogosphere. Via Kos, Michael at AMERICAblog has come up with a dandy:
He is apparently ashamed of everything he’s ever done. Alito boasted on an application for promotion in the Reagan administration about belonging to the racist, Neanderthal-ish Concerned Alumni For Princeton. Now he pretends he can’t remember ever belonging to them at all.
Alito said he wanted to become a lawyer because he was so distraught about Supreme Court rulings that led to “one person, one vote,” a cornerstone of our modern democracy. Now, he says we should ignore his consistent, persistent attacks on affirmative action.
Alito also cannily helped to devise the incremental approach to dismantling Roe v Wade that has been the very tactic the far right has used. Now Alito says to ignore all that.
Alito has repeatedly proven he believes the president is more like an emperor — someone who deserves almost unlimited deference from the Supreme Court, especially during a time of war.
Finally, Alito pledged to the Senate that he would recuse himself under certain situations as a federal judge. He repeatedly broke that pledge. His excuses vary: he forgot, the computers shouldn’t have assigned him those cases in the first place, he never HAD to recuse himself, and finally he never promised he would recuse himself forever. The reasons change, but the fact remains: Alito gave his word and then he broke it. He can’t be trusted.
Since Alito is so clearly ashamed of himself, shouldn’t we be ashamed of him and keep him off the Supreme Court?
Last night on Hardball, the guest-hosting Norah O’Donnell kept trying to get a rightie guest to admit that Alito would turn the court to the Right; I don’t believe she got a straight answer from any of them. What are righties ashamed of (like we don’t know)?
Update: Glenn Greenwald says Dems must filibuster!
Update update: Don’t miss “Bush Wired for Alito Remarks” at Democrats.com!!!