The Right Fight

Many Democratic strategists contend that a battle to block Samuel Alito's elevation to the Supreme Court is the wrong fight at the wrong time. The Bush presidency is in trouble on so many other fronts: the deceptions that misled the nation into war, the disastrous war itself, the spreading stain of corruption, the bungling of Katrina, the defection of moderate Republicans from the Bush tax and budget program.

Given this self-inflicted Republican collapse, why pick a fight that could make Democrats look divisive and obstructionist? Why make Roe v. Wade the fulcrum of American politics? Why not concede Alito's confirmation, and fight on stronger ground? Why invite the charge of abusing Senate procedure with a filibuster?

Herewith a dissent. As the full record emerges, it's clear that Alito is a hard-line right-winger, and not just on abortion rights. Roe may loom too large in American politics. But Alito has been dreadful on numerous other issues. The far right is not cheering because Alito is some kind of moderate in conservative's clothing.

And of course while Chief Justice John Roberts filling the late William Rehnquist's seat is one conservative succeeding another, Alito would replace Sandra Day O'Connor, the swing vote not only on Roe but on the Michigan decision preserving affirmative action, on restraining money in politics, on Congress' ability to legislate family and medical leave, and dozens more issues where Alito would likely go the other way.

Given these realities, and coupled with the substantial weakening of the Bush presidency, it would be a huge mistake for Democrats to let Alito sail through and just get out of the way. Several Republicans may well oppose him on the merits, depending on what else comes to light before and during the hearings.

Moreover, the dynamics of a filibuster are markedly different now than they were last summer, when a bipartisan “Gang of 14” narrowly averted Senate Majority Leader Bill Frist's “nuclear option” threat to change the Senate rules to prohibit filibusters on judicial appointees. After the sacking of Harriett Miers, the Republicans have lost any moral high ground on the always contrived claim that every nominee deserves an up-or-down vote. Dozens of Clinton appointees were denied a floor vote. Poor Miers was denied even the courtesy of a hearing. So any claim that Alito deserves a floor vote would reek of hypocrisy.

The Democratic willingness to use procedural rights and the plain arithmetic of holding a filibuster and preventing the nuclear option have also improved. If the Democratic caucus decides to oppose Alito, Senate Minority Leader Harry Reid will have the necessary 41 votes to filibuster. And a weakened Frist will not likely muster the 50 votes needed to change the Senate rules, as Republican moderates distance themselves from the hard right.

To shore up Democratic resolve, the country needs to be educated on the stakes. Alito is sympathetic to the libertarian “Constitution in exile” movement, which embraces a pre-1937 view of Congress' right to regulate. Thus, Alito would likely restrict federal legislation in a wide range of health, safety, environmental, labor, and consumer safeguards that protect ordinary Americans. With his deference to the power of the executive, Alito would endorse the erosion of precious liberties. Even if he did not vote to overturn Roe outright, he would support loopholes that would invite mischief at the state level, energizing anti-abortionist pressure on state officials and effectively denying reproductive choice to more women, especially low-income women.

Politically, Alito represents a craven capitulation to the right, at a time when most Americans have turned away from the Bush agenda. The standard plaint is that the Democrats need to be clearer about what they stand for. What better moment to demonstrate clarity, unity, and resolve than in standing against a judge that the far-right imposed on George W. Bush?

With Bush's popularity plummeting, Democratic senators in swing states should have nothing to fear in voting to block this nomination. It would be appalling if the leadership gave Alito a pass and we had another case of Senate Democrats splitting 22 to 22, as they did on Roberts. That would signal neither clarity nor unity nor resolve.

Most importantly, this is not just another tactical vote. This is about the Supreme Court. By this time next year Republicans may be the minority in one or both houses, and Bush will be gone by January 2009. But a Bush Supreme Court would be the gift that kept on giving -- long after the public had rejected Bushism. Far from a fight to be ducked, the Alito nomination is a chance to show liberal resolve and stop the far right from taking over the country.

Robert Kuttner is co-editor of The American Prospect.

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