Sc(Alito)'s The One

by DemFromCT

Acting from political weakness,

President Bush is nominating Judge Samuel A. Alito Jr. to the Supreme Court, according to news reports, choosing a long-time federal judge embraced by judicial conservatives to replace retiring Justice Sandra Day O'Connor.

Bush plans to announce the nomination at 8 a.m. Eastern Time, the Associated Press reported, quoting White House officials who spoke on condition of anonymity.

The choice likely will mend a rift in the Republican Party caused by his failed nomination of Harriet Miers.

The choice likely will widen a rift between Bush and the rest of the country. Alito's competence won't be an issue, but his judicial philosophy will. Down in the polls, desperate to both rally his base and change the subject, Alito will do both. He will also be the subject of intense opposition from the Democrats.

Brush up on Kagro X's Nuclear Option series. You're going to need it before we're done. But the idea that Bush is somehow the President of the Conservative States only is becoming more of a dead end every day. He severely risks the alienation of moderates over this as the issues of Alito's philosophy and writings become better known.  I'll leave that analysis to others better qualified than me; what I want to emphasize is the notion that the US is a conservative country is just wrong. It's a moderate contry, and has been for years.

We are roughly divided in three, with moderates being the swing vote just as O'Connor was on the Supreme Court. At times conservatives convince the moderates to vote with them and the Republicans win. At times they don, and the Democrats win. Conservatives outnumber liberals, but that doesn't matter. Conservatives rarely at the national level have enough votes to win. That's why their agenda, be it Intelligent Design, or compassionate conservativism, always has to be a stealth campaign. Laying out their agenda usually makes them lose.

This time, there's nothing stealthy about ScAlito. It will be more tumult and turmoil over the next few weeks... but understand that it's because of Bush's weakness, not strength, that we're going to have to go through this. And (depite the triumphalism of the wingnuts on the Right) none of it proves that Bush has learned a damned thing about governing.

 

Comments

[DemFromCT]

btw, Bush can't afford to lose, so he's throwing the dice.

Combining the uncertainty in the Senate with the president's other political problems makes the choice of his next Supreme Court nominee a delicate balancing act, said Charlie Cook, editor of the nonpartisan Cook Political Report.

"He needs a fight that would help re-energize the conservative Republican base," Mr. Cook said. "But at the same time he can't afford a loss. He is in a profoundly weakened condition, and a loss on top of everything else that has happened all year would be terrible."

[RonK, Seattle]

[movie trailer voiceover:] He broke the Army. He broke the Treasury. Now he wants to break the Law.

[KdmFromPhila]

Where might he stand on executive privilege? I've read that Cheney might invoke that if he is called to testify for Libby. Alito might be seen as the "get out of jail free" card by the administration. Wouldn't hurt to tie him to a scandal would it?

[Kagro X]

Third time's a charm, eh?

Wonder how it feels to be the back-up choice to the worst back-up choice in history.

[Kagro X]

Let me also say that while the chatter is all about how Bush is satisfying "the base" with Alito, I think what I said earlier about where the split is on the right is a more accurate picture. Alito is... Catholic.

[TenThousandThings]

Seems to me that this will trigger a filibuster. The prospect of a Scalia-Alito axis, combined with the fantasy world of Clarence Thomas, is enough of a threat to keep most Senate Democrats together.

The question is, then, is Bush strong enough to support the Nukular Option?

[Kagro X]

Will America accept a nuclear option triggered by an unindicted co-conspirator?

Unfortunately, the nature of the nuclear option is such that they can afford to think no one cares.

[marky]

I don't see any reason for optimism. It's just worthless to say that Alito is a sign of Bush's weakness. Yeah, so what?
What matters is whether Alito will be confirmed. What are the chances he will be stopped? Not good, I would say.

[al-Fubar]

It's more accurate, IMHO, to say that the US is a rhetorically conservative country. We (the generic national "we") love conservative buzzwords and bromides, which is why the GOP does well with soundbite politics. But we don't particularly go for conservative results.

A great recent example is Bush's failed attempt to wreck Social Security. It polled relatively well at first, but the more people heard about it the less they liked it.

If I were a Dem Senator on the Judiciary Committee, I would not jump right into opposition, but talk about "serious questions," yada yada yada. Then get into the hearings and start asking them.

Rightie intellectuals always say it's about judicial philosophy, so let's have it. Straight-on questions about Roe v Wade, etc., are easily ducked, but the underlying framework - privacy, what rights mean, and so on - is not. Pull the thread and let the public see where it leads.

-- Rick

[RonK, Seattle]

Oh, boy, is Harry Reid on top of it! "I look forward to meeting Judge Alito and learning why those who want to pack the Court with judicial activists ...".

My two cents exactly. Now that we have the public's attention, let's go to work of that whole Clinton-era confirmation embargo and its court-packing consequences.

[marky]

We could ask why Bush supports non-warranted strip-searches for 10-year old girls.

[Meteor Blades]

Dubyanocchio has done what most of us on the left expected with his third nominee to fill Sandra Day O'Connor's seat on the Supreme Court: chosen someone whose judicial philosophy is crystal clear as well as crystalline in its hard right approach to issues of major concern.

The right wing is understandably ecstatic. Ed Whelan at NRO says:

By any objective criteria, it is doubtful that there is anyone now or in recent decades (yes, not even Chief Justice Roberts) whose experience and qualifications better prepare him for the Supreme Court.

It isn't just the anti-abortion crowd that loves him, either. Larry Ribstein at Ideoblog says:

And as I discussed regarding Miers, e.g., here and here, it’s important we get a judge who will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation. Based on a quick check Alito is such a judge.

Should makes some other people happy, too, as witness this from his decisions:

In one case that came before Alito, an African American had been convicted of felony murder and sentenced to death by an all-white jury from which black jurors had been impermissibly struck. Alito cast the deciding vote and wrote the majority opinion in a 2-1 ruling rejecting the defendant's claims. The full Third Circuit reversed Alito's ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution's exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. Presidents have been left-handed. According to the majority, "[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."

Polipundit examines the likely votes of the pro-Roe Republicans and anti-Roe Democrats and comes up with a tally of 50-52 in favor of confirmation.

He puts Republicans Hutchison, Isakson, Murkowski and maybe Specter in the pro-Alito camp. He predicts Chafee, Collins, Snowe and Warner will vote for. He thinks Stevens may opt not to vote, just as he abstained on Priscilla Owens for the 5th Circuit. Ben Nelson he puts in the pro-Alito camp, but predicts Reid and Mark Pryor will vote against.

50 (plus tie-breaking Cheney) or 52 votes obviously aren't enough to squelch a filibuster. But Lindsey Graham is already making noise regarding the nuclear option:

But Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, "the filibuster will not stand."

Mr. Graham's warning was significant because he played a crucial role earlier this year in helping block a Republican effort to change the Senate rules - known as the nuclear option - so that Democrats could not filibuster judicial nominees. His comments on Sunday indicated that this time, he would support that rule change; Democrats have threatened to retaliate with a battle that could snarl Senate business for months.

[Mimikatz]

Alito is known to have been on Reid's "do not pick" list. This is a direct affront to Reid. Perhaps Bush believed Reid suckered him with Miers, and this is both a payoff to the base and a payback to Reid. I believe I have read Specter wouldn't be thrilled with him either.

Reid is already playing his cards carefully. He is being acidly cautious, but has to know that the far Right won't be able to contain their triumphalism and their praise for Alioto. That praise, in turn, will not play well in many places, including New England and parts of the mountain West, where people revere privacy.

Reid has been preparing long and hard for this. We won't know for some time whether we will get a filibuster as such, but there are a lot of intermediate steps, such as the occasional refusal to give unanimous consent to something so the Senate can't get the budget done on time, and of course there is the fight over the torture amendment in the Defense budget. Cheney, Mr. pull-the-nuclear-trigger, has to be careful how many people he alienates on that fight.

This is going to be a very complicated fall, and people who say this will be an easy confirmation are overoptimistic (or overpessimistic), it seems to me. This is a time for those who really understand the Senate rules to do their work. Unfortunately, we won't see all of it, but pay attention to the pace of Senate work, when the hearings begin and, more importantly, when they end and when we get to the vote. Maybe not until next year.

And the impact on next year's Senate races is immense. Chafee and Collins voting for? Really? I wouldn't count those chickens just yet. Kyl is in a bit of a bind too.

[radish]

Assuming the worst-case scenario that now looks likely, does the GOP really want this hugely unpopular veep, whose chief-of-staff is under indictment for perjury and obstruction and under suspicion of espionage violations, and who is himself under a cloud, to be pushing a big red button which will be perceived as outlawing abortion?

Man, I look at that and I see raging electoral catastrophe, regardless of how poorly Dems frame it and how friendly the press is. Why would Lindsay Graham consider Alito worth that price? Would they be trying to do this without Big Time on the scene? Do they expect him to be gone soon? What the hell are they thinking?

[Meteor Blades]

Jeez. I meant to say Chafee, Snowe, Collins opposed. Sorry.

Here's the faux Scalito blog.

[Mimikatz]

That's what I meant. The Pat Buchanans of the world who wanted the Armageddon fight should be careful what they wish for. I thought Alan Simpson on Hardball last Friday (Thursday?) was good. He is pro-choice, the epititome of the mountain Westerner I was talking about. He said he thought it was bad, maybe even a national tragedy, that Supreme Court fights focused on abortion. He thought the GOP position was wrong and politically wrong to boot. He thought it would be very bad for the GOP to ally with the far right on this. He seemed to be cautioning against just such a nominee. He also seemed very glad to be retired.

And to go into the nuclear fight with Darth Cheney on the button is just crazy for them, it seems to me. I think there is a lot of poker being played by people like Graham here. There will be a huge spotlight on the nuclear fight now, in a way there wasn't last summer. And it will be a factor in many Senate races next year. Someone like Kyl wouldn't vote against, but it sure isn't going to help him. Same with No-Talent.

I really do sense that the American people are getting tired of grand crusades led by people who are absolutely convinced they are right. Things are going bad for a great many people in this country, the stock market notwithstanding. Import prices and gas prices and heating oil are up. Health care is a disaster, education is bad and they are talking about cutting student loans. Iraq is a disaster. And we are having a giant fight over whether Roe v. Wade should be rolled back and remaking the Middle East. How out of touch the GOP government must seem, just like Arnold and his ballot measures here in CA. The Dems need to go back and read EJ Dionne's "Why Americans Hate Politics" and get with a good program.

[emptywheel]

Here's the math as I'd guess it:

10-8 partyline vote to get it out of committee (with a good deal of stalling here)

a 43-person filibuster (less Nelson and Pryor; not supporting the filibuster would be lethal for Joe, I think he's sufficiently anti-woman to make Mary support, and Bush's snub of Latinos gives Salazar the cover to support)

If they try a nuclear option, the vote might be 51-49 (add in the Dems, Lott, Specter, Collins, Snowe, Warner, McCain)

If a floor vote were held, it might be 54-46 (the Dems minus Nelson and Pryor, plus Specter, Collins, Snowe)

Basically, I think this nomination has succeeded only in Bush putting a down-payment on his rabid troops for the next several months, in the hope that increasing partisanship beyond belief might result in the defense of Bush and Cheney in Plame, etc.

[orchid314]

I absolutely agree with you, Mimikatz, that Americans are beginning to experience "divisiveness fatigue." I would argue that presidents can only be successful long term when they govern from the center. External events such as the Depression or JFK's assassination or 9/11 may give a president temporary permission to veer more to the left or the right as the case may be, but only until that external event runs its natural course. The natural equilibrium of the two-party system (and imo of human nature in general) is to come back to a centrist, middle-of-the-road resting state.

It's what smart presidents have done when they found themselves in political trouble, too. Witness Reagan's house-cleaning and tack to the center after Iran-Contra. And Clinton stuck to the center as if it were practically a life raft throughout the whole Lewinsky mess. Why Bush continues to believe in Rove's creed that a president can torque his base tighter and tighter to achieve results, and still be successful over the long run, I simply don't understand. It's useful in the short term, as a campaign strategy, but it doesn't apply to actual governance. Bush will pay a price for it by the end of his second term, even having a docile press and a relatively unorganized opposition party in his favor.

[DemFromCT]

I would argue that presidents can only be successful long term when they govern from the center.

Yes, yes and yes. Btw, I agree.

[emptypockets]

From Specter's superduperprecedent ruckus in the Roberts hearings I thought he was staunchly pro-choice and would resist on Alito. I'm being naive?

[emptypockets]

governing from the center: the trick is to keep moving the center to the left.

[emptywheel]

~pockets

I think Specter will eventually vote against Alito. But will that be in the Committee, which would make a tie, non-recommendation coming out of Committee? I doubt it. I think he'll support upperdown enough that he lets this get to the floor.

[emptywheel]

One of my favorite comments is Franklin Foer's on the increasingly enjoyable TNR Plank:

Of course, Bush could have gone right and simultaneously avoided this kind of Battle- of-Somme scenario. Or to re-frame that assertion: Why didn't he nominate Judge Michael McConnell? After all, McConnell would have nearly the same Federalist Society friendly views as Alito. But he would also bring along the endorsement of liberal academia. My best guesses for why he skipped over McConnell: 1) Bush actually needs a bloody confirmation fight. 2) He probably can't stand McConnell's heretical position on Bush v. Gore. 3) McConnell represents the kind of pointy-headed intellectualism that the president can't abide. 4) He's not physically fit enough to deserve a promotion to the highest court in the land.

Take it away, Ralph Neas and Boyden Gray.

[RonK, Seattle]

With Alito, the Court would be 8-1 male, 8-1 Ivy League, and 5-4 Catholic.

Should Justice Ginsburg retire, there would be pressure on all sides to confirm a woman -- any woman (excepting Harriet Miers).

Janice Rodgers Brown, anybody?

[Meteor Blades]

The natural equilibrium of the two-party system (and imo of human nature in general) is to come back to a centrist, middle-of-the-road resting state.

Sure. But as emptypockets notes, moving the "center" around is key to political change. Over the past 25-30 years, the political "center" in elected and appointed Washington has shifted decidedly to the "right." It's not your father's (or grandfather's) political spectrum anymore.

It think the only trouble with the crusade fatigue, MimiKatz, is that, outside of foreign policy, half-measures just won't do - whether it's health care, education, energy or environment.

[orchid314]

MB, Sure the definition of the center will shift and move in cycles according to the issues of the day, the political influences that have directly preceded it, the relative strength of the two parties, etc. What I'm saying is that a president has very little chance of a long-term legacy or of being effective if he departs for too long from the definition of the center that's in play at the time he's in office.

And I beg to differ on half-measures not sufficing. Building on half-measures (or compromises, as I like to think of them), and then building more compromise from that, is exactly how one goes about governing well. It's just that we have become so immersed in partisanship, since around 1996 but especially post-2000, that we've lost sight of how lawmakers actually used to work out these kinds of deals on a regular basis.

I attribute a lot of the partisanship to the disintegration of the Cold War, and for the GOP's need to have a villain constantly in play in order to give validation to their agenda. Clinton said this while in office: that the Cold War had basically stripped the GOP of its need for existence, so that they had to come up with partisanship as a substitute. Even after al Qaeda came on the scene, the Republicans have continued to demonize the opposition because it's good for their fundraising, and because of Karl Rove's own personal pathologies. I don't believe that it's good, though, for the longer term health of the party.

[Andrew Jones]

"But the idea that Bush is somehow the President of the Conservative States" oh come on man... regionalism like this is fucking ridicilous. there's just as many "liberals" or whatever anywhere. The only thing driving the u.s. apart is the rather amazing ability of "blue states" to spit on the already down and out with comments like this. Where did all those "blue state" voters come from? Somewhere else. We can't all land jobs in growing cities with bustling economies, that doesn't mean we're stupid.

peace,
A

[Andrew Jones]

oop... just read the rest of your post. sorry about the comment above.
didn't realize your were critiquing the whole myth of the state and all that.

peace,
A

[emptypockets]

MB, I thought the center has always been moving left (not smoothly, but say averaged over 10-year windows)? I may just be thinking about social issues - mainly gay & racial minority civil rights. Why do you say it's moved right?

orchid, I tend to agree with you about a president needing to govern from the center to be seen as successful when he or she leaves office... although I wonder if that's true for the long haul -- if the ones who leave a mark on history aren't the ones who may be more divisive. For better or worse. I guess it depends on one's idea of "successful."

But I certainly think presidents can move the political center... for example if Reagan had embraced gays and spoken openly about AIDS in the beginning I imagine a lot of gay civil rights that we're only seeing now might have been advanced sooner. I may be naive again there.

emptywheel, I hope Specter doesn't do what you said although it certainly sounds like a reasonable scenario.

[RonK, Seattle]

Re presidents and centers, see the Daily Pragmatist's takes on Skowronek's theories of The Politics Presidents Make, and the politics of articulation as applied to Bush in particular.

[Mimikatz]

I literally meant that Americans are tired of crusades by absolutists. I don;t think they are tired of politicians trying to solve big problems. I think a good many people are hungry for competence and effectiveness. Look how they gravitated to Arnold and then away from him when it became apparent he wasn;t serious about solving problems. I think they are tired of absolutists but want probelm solvers. Maybe I am just projecting my desires onto the public, but I think aside from the hard core right and some on the left, most people want to see problems get addressed. This means the Dems need to draw contrasts, but also need to begin to present some ideas and solutions, even if in broad outlines.

[Meteor Blades]

Point (about crusades) taken, Mimikatz.

emptypockets, I should have boldfaced the "elected" and "appointed" officials qualifiers in my comment about the political spectrum. Certainly, when it comes to many social issues, the spectral shift has been somewhat leftward. But on economics, energy, the environment, and to a degree, reproductive rights, the spectrum has shifted rightward - with a partial hiatus during Clinton's two terms. I don't mean this characterizes the attitude of the voters, but rather the elected and appointed officials in DC.

orchid214, I've been a big believer in half-measures and compromise for the very pragmatic reasons you state. But in the past decade or so, my mind has been changed about this. Health care coverage, for instance, is being worsened by half-measures.

[The Ugly American]

I am glad to see some civilized discussion here (for the most part). I wish I could say the same about other Dem sites. the folks at Americablog and Kos are going batty again. When will people learn this hurts the party?

I couldnt get the trackback to work but if anyone is interested I have some comments on my site here:

http://therealuglyamerican.blogspot.com/2005/10/as-usual-my-fellow-liberals-are.html

It is my first time visiting your site. I will definitely be back.