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January 10, 2006


After just the first day of the Roberts hearings, I was feeling that Roberts was not objectionable enough to be blocked. After the first day of Alito (and I've only listened in bits), I am feeling that Alito can be blocked. Alito, to me, has come across as being open to charges of ideology and not possessing a suitable judicial temperament. I would be grateful to learn what the wiser (or at least the grayer) heads in these parts heard today.

I would be grateful to learn what the wiser (or at least the grayer) heads in these parts heard today.

(emptywheel being of course included, as the former.)

The media is saying that Dems haven't made any direct hits. But I think the Republicans are scared. They've been doing little but playing defense, responding, over and over again, to Democratic issues.

And frankly, I've never seen DiFi or Feingold better.

Oh, I want to add one point.

A lot of people interpret Feingold's questioning as a set-up to expose Lindsay Graham's involvement in debate prep. But I don't think Feingold was going after Graham. Yes, it's a conflict to have Graham do debate prep.

But it's more of a problem if someone like (say) Harriet Miers does debate prep on NSA wiretaps. Because Miers is involved in the administration's justification for illegal wiretappings. And by helping Alito determine how to approach those questions, she's prejudicing any case that might come before Alito in the future.

I've thought all along that Alito's record afforded the Dems a pretty good opportunity to derail his nomination. This guy isn't a cipher like Roberts; on a continum between Roberts and Bork, Alito is clearly closer to Bork. The question for me all along was whether the Dems would have the stomach for the fight, whether they could bruise him enough in the hearings, and whether they can hold their caucus together. I have to believe there would be pretty severe reprocussions from a lot of the interests groups if they don't figh hard on this one and risk the Nuclear Option. And one of the most likely to fold Democrats on most things is Lieberman, but with his committment to choice, I could see him holding firm. Landrieu may not have much to lose. Salazar has been picking fights with the wingers of late, and the tide is going his direction in Colorado. Bill Nelson is looking safer and safer, and being pro-choice shouldn't and willing to stand up against someone out of the mainstream shouldn't hurt him in Florida. Pryor and Lincoln, I don't know where they would go. Same with Johnson. The North Dakotans would probably hold firm. And I can't think of anyone else who would be likely to bolt (other than Ben Nelson, but we shouldn't count on him to be part of the 40 anyways.) And who knows what would happen with Chaffee, the Mainers and possibly even Specter.

It's up the Dems. Every poll I've seen show a solid, solid majority of Americans--often in the high 60's--who would oppose a Supreme Court Justice who would overturn Roe v Wade. I understand why up to know the Dems have largely held their fire. It didn't make much sense to start the battle in earnest until after the hearings began and people would be more likely to be paying attention. But now's the chance for the Dems to portray Alito as someone who would overturn Roe v Wade, is an extremist, and shouldn't be approved for the court.

Will they block him? I honestly don't know. But if they don't try, I'll have to say that the Nuclear Option fight was all for nothing, because Alito is an extremist, and should not be permitted to sit on the Supreme Court.

And fwiw, I only have a few grey hairs, and unless you're really looking for them, you probably wouldn't notice them. I mention this in case you want to take that into consideration in judging the validity of my comment.

The GOP talking point for many years has been that Dems are single-minded fanatics when it comes to the abortion issue. Anti-abortion wackos like to compare abortion to slavery, but it's clear to me that Democrats are playing the role of the abolitionists here, with the pro-slavery Republicans complaining, "Why are you people so fixated on one issue?"

Still, I think it plays well for the Dems to have Roe serve as but one ingredient in a cocktail of concerns that includes executive power, ethics/honesty, and the CAP issue (the latter two of which are becoming tied together even more closely as we move forward). For my part, as an unabashed liberal, I want to see the Dems develop some political courage. Abortion is easy - they all know that is a hill their base wants them to die on. But I'd love to see them take a stand on something else.

You know... there are more important things than the right to choose and abortion. Yes, its important, but lets think this through for a moment... worst case, it becomes a states rights issue and each state's legislature gets to decide-- the voters would literally convene a public hanging if any state legislator tried to circumscribe a women's right to decide... so get off it, the sky aint goin fall here... Conversely, we're in the throes of a hi-jacked imperialist Presidency, and on the cusp of a sanctioned dictatorship, and soon to have a supporting Court in the midst of this unprecedented power grab... It is simply incomprehensible that we should even have to listen to Alito talk about the "competing sides in the debate" on the NSA covert eavesdropping and torture/renditions as if there is room for reasonable disagreement and debate about what Bush/Cheney have foisted upon the unwitting public under the guise of Presidentil perogative in "wartime". It has become patently obvious that the linchpin to this entire Administration's modus operandi was for Bush declare himself a War president-- even if it meant declaring war on the Lilliputians-- in order to usurp the powers Dick felt he wanted for the office, and had been forfeited under the Nixon purge...

The Alito nomination is a redline. If the Dems do not stand firm and oppose him without a fight, this independent, will have no reason to vote for the Dem party. Why? For a another generation at least we will have a Supreme Court stacked against individual liberty. The single biggest issue for me are the rights of the individual, so important that the first Congress amended the Constitution with the Bill of Rights. This is what makes America different. Otherwise we are no different than any other totalitarian democracy we see scattered around the globe.

On the other hand I am totally impressed by Sen. Feingold. The lone vote against the Patriot Act, required courage of conviction unlike the other weather-vanes. Marshalling both political support and popular support against the blanket renewal of the Patriot Act demonstrated why he bears watching.

I hope more Dems rally around this man and give hope to people like me, deeply concerned about the march towards a post-modern fascism.

My question for Alito: did Bush vs. Gore come up in debate prep? If so, his advisors had a choice: tell him to learn more on the subject so he can answer the question, or hold fast with his lack of knowledge so he doesn't have to. Did they advise him not to study the issue? If not, did he choose on his own not to investigate (as opposed to NSA spying, which he looked up on the internet)

Remember that Corzine is sworn in as NJ Gov before the vote, and Menendez will be sworn in as his replacement on the 18th. His first act as a senator may well be to vote against a judicial nominee from his home state.

On the questioning-- Joe Biden, just cede your 20 minutes tomorrow to Feingold. Please.

I have to review the transcripts when published tomorrow. But from memory, it seems astoundingly Alito even hedged on habeas. Feingold would be fuming about, given his lone stand again against the Graham impetus to waive some habeas. Alito praised some rights to privacy, a mild miracle in among the reactionary sorts of nominee Bush is sending to Judiciary for all sorts of appointments these years, but Alito was pretty clear that his mind has changed little since most of what he said and did in the Reagan years; it seems his view is he had it right and he is building on it. Though he forgets CAP's kultural regressiveness; I can agree there are some forgettable parts of my alumni organization, but ours was a more liberal campus than Princeton, fortunately. There was some fracas over ROTC being banned at lots of campuses during the more stressful times after I left, but right around the time Alito would have been in the thick of it. The ROTC issue was a hotbutton for lots of youth who wanted to stay in college but wanted ROTC to base itself off campus.
It would be interesting to take Alito to task over some of the puzzling argument in FAIR v Rumsfeld recently; or over what educators are calling exhortation of high school students to join the military. Pretty charged rhetoric in the latter dispute; some campuses succeeding in banning ROTC from high school. On x-searching the preteen young woman, Alito did an evasion. I was hoping he would talk about societal good when discussing the commerce clause but there was more nimble nondebate. I suspect he is going to have a few interchanges more. It was interesting to hear him trying to stake out some high ground in some of the issues thread participants worry about, above, regarding the unitary executive; but one wonders how far he would go, given the diverse pressures on all branches of government now. It is more like he is saying he is reserving judgment until there is a case and there likely will be a case. On the financial portfolio recusal, he had one of the senators try to run interference. I am glad Feinstein addressed some of the most inexplicable problems this presidency is facing, irrespective of the likelihood the Supreme Court is going to face decisions in several if the matters she holds important. The issue as you all report is the vote count. Yet, first, I hold great hope a few debating points are possible yet in the hearings. On Biden, we know he helped a lot sometimes; I observe that should Alito remain in the 3rd court, Delaware is in that district, not to bite the hand that feeds. All this is based on is the law students clinic and their profs who did a blog today from the hearings. I think folks like Leahy and Kennedy are best when they have heartfelt problems. Maybe ReddHedd could forward a few questions.


It's my impression that they are hitting on multiple issues. The Dems have been zeroing in on Alito's non-recusal on Vanguard such that I think they'll prove he didn't fulfill his promise to the Senate. Obviously, Feingold is pushing hard on civil liberties (and, also, noting that Abu Gonzales lied to get appointed). From what I saw yesterday (I missed the morning), DiFi was hammering that Alito had made an analogy between parental choice and spousal choice, and Schumer was framing the Roe in larger terms (and also noting that Thomas lied to get appointed).

I think when we're done, we'll have a 3 point case against Alito:

He has already prejudiced his view on Executive power issues and is likely to support an expansive presidency.

He will overturn Roe and do a number of other things to curtail women's and minority's equality.

He did not keep his promise to the Senate the last time (and so we should expect he will not keep any promises he makes this time around, particularly relating to ethics violations).

My impressions of yesterday's hearing, in a nutshell, summarized here

The Dems have certainly brought up all of the issues I would like to hear, but the proof lies in the action they take when the hearings are concluded. This is a key test of the Democrats' ability to formulate a clear, unified message and to take a stand on that message.

I don't know what they will end up doing, but nobody ever went broke betting against the Democrats' willingness to take a stand, which is why they are such a perenially disappointing party. Here's yet another golden opportunity to reverse that perception.

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