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October 31, 2005

Politics of Alito

Politically speaking, I think John Cole's new guestblogger Tim is exactly right on all this. Bush had no choice other than to nominate Alito (or Luttig, or someone similar) to the Court. And that's important in mentally framing the debate: George W. Bush is running this nomination from a place of weakness. He did not nominate a hardliner because he trusted in his own strength, he nominated a hardliner because he learned he was no longer strong. Alito is a sop to the right, a base closer, red meat for radicals. And Democrats should remember that.

October 31, 2005 | Permalink

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So we should be happy that Bush is starting to learn from his mistakes, and is returning to his strength?

Posted by: Dan | Oct 31, 2005 1:14:34 PM

I'm a little unnerved because it feels as though the left has learned nothing from the past 5 years, least of all how to fight these red meat panderings to a narrow audience, i.e. his "base". I could be wrong about this - there may be something to the slow, quiet buildup of opposition that may be happening today. But it feels slow and poorly anticipated.

I agree with your post below - Alito is awful, his approach is awful and the America we'd wind up with would be awful. But partly, I think there's a moderate majority that just refuses to believe how bad it could get. And in that, I think, is the sanguinity that says well, maybe things need to get bad for some people to learn. The notion that the reasonable alternative to the (even potential) appointment of Alito was a poorly qualified cipher like Miers is bad logic and worse policy; she was bad and we should have opposed her. Alito is bad in a different, but just as compelling way. I don't know that the voices on the left know how to convey that sentiment to others so that they'll understand. I wish we did. But wishing does not make it so.

Posted by: weboy | Oct 31, 2005 1:45:17 PM

Cole's wrong on this - you can easily blame the President for not showing leadership but instead pandering to his base. The fact that its the same tactic that has worked for his entire Presidency doesn't excuse the fact that its actually a bad idea.

A real leader wouldn't be in this situation because, instead of reaching the point where he has a choice between a red-meat 30% (I don't believe its actually Cole's 40% number) and a tepid 50%, he could have had a middling 70% right now had he shown real leadership post-9/11 instead of fear mongering and base pandering.

So he completely deserves any and all criticism that he gets for not being able to build a coalition of folks in the middle large enough to counter the extreme right wing of his "base" over the last 4 years.

Posted by: NonyNony | Oct 31, 2005 1:48:49 PM

Alito is awful, his approach is awful and the America we'd wind up with would be awful.

Really?
It is my understanding that he was confirmed by the Senate to his last post on the 3rd unanimously! I would like to see some of the comments that the liberals said about him at that time.

Posted by: Fred Jones | Oct 31, 2005 1:56:35 PM

Well, he will always be Bush's "number two pick", to paraphrase a GOP cheerleader chant from last year. This kind of desperate move was easily speculated. He will probably, just barely, get confirmed, but I hope the Dems fight him like hell. I've been looking over his Casey case decision and it is very clear that to mr. scalito, women = property and not much else.

Posted by: sprocket | Oct 31, 2005 2:12:28 PM

"it is very clear that to mr. scalito, women = property and not much else."

In his Casey dissent he wrote that notification of the husband that the wife was going to abort their baby was reasonable. He opined that it was not an "undue burden"(O'Connor's standard) on the mother to notify the father.

It sounds to me like he is standing up for the rights of a husband.

Posted by: Captain Toke | Oct 31, 2005 2:39:31 PM

Heheheh....economy growing in spite of the war and the multiple hurricanes... Election in Iraq more of a success than anticipated...tax cuts for all taxpayers...prescription drug bill...Valerie Plame insvestigation not resonating with the public....nominating conservative justices....maybe even more to come....

No control of any major government organ.

It's a tough time to be a Democrat.

Posted by: Fred Jones | Oct 31, 2005 2:54:25 PM

Well somebody has to say it...

Toke, the Supreme Court (O'Connor, Kennedy and Souter) addressed this in Casey. They point out that in most couples, the wife is likely to consult with her husband on a decision as momentous as the decision to end a pregnancy. But to stipulate, in law, that a woman is required to inform her husband puts, just as an example, an abused or battered woman in the position of getting further abuse.

The point of such a rule isn't greater sharing by couples, the point is control - control of a woman's body and her right to choose, for herself, whether or not to have an abortion. Just as a husband can't force his wife to have an abortion against her will, he shouldn't be able to force her to carry a child to term. This is something very fundamental, and yes, very disconcerting to people who are opposed to abortion and woman's right to choose. That Alito sees nothing burdensome about restricting a woman in this way is at least cause for pausing if not distressing.

Now, we can go back and argue about "undue burdens" - it's not necessarily a great standard - but that's not really the point for many people opposed to abortion. Presuming that abortion is only done by happily married women in couples is nonsense. Abortion is often the last choice of a desperate woman in a dreadful circumstance - be it a high school or college woman with an unintended pregnancy, a rape victim, an incest survivor, or other imperfect situations with difficult choices. Yes, some women use it, sadly, as birth control or in situations others might judge as whimsical or capricious. But that is what you get when you say it is up to a woman to decide, for herself, whether or not she wants to be pregnant. And that does, indeed, come down to the crux of Roe and the crux of the abortion debate. And it's what makes "what's wrong with having her tell her husband" ultimately far less benign than it seems at first blush.

And yes Fred, it's hard being a Democrat these days. That still makes gloating unattractive.

Posted by: weboy | Oct 31, 2005 3:35:26 PM

Seriously, Toke, a man doesn't have a right to control a woman's body. If you have a baby incubator that you can keep the fetus in, then we'll talk. Until then, I get to decide what happens to the parts of my body.

Posted by: Sara | Oct 31, 2005 3:43:38 PM

Bush has made a base-satisfying, partisan, and immoderate choice for SCOTUS. Bu$hCo knows that this is going to be vigorously opposed.

So let's fulfill his expectations.

Posted by: JimPortandOR | Oct 31, 2005 3:47:19 PM

"he shouldn't be able to force her to carry a child to term."

Are you really that dumb, or are you trying to mislead? He wrote the wife must notify. Notify, Notify. And that notifying the husband was not "undue burden".

Do you understand what notifying means?

Alito thought the wife should have to notify the husband that she is going to abort their baby.

"Seriously, Toke, a man doesn't have a right to control a woman's body. If you have a baby incubator that you can keep the fetus in, then we'll talk. Until then, I get to decide what happens to the parts of my body."

Do you people understand what notify means?

Posted by: Captain Toke | Oct 31, 2005 3:50:32 PM

I see that Captian Toke is perfectly fine with forcing abused women to tell their abusers that they are pregnant. A few uppity women getitng their heads beat in is worth it just so he can preen about protecting husband's rights.

Altio took a stupid thing: he said the undue burden standard should apply not to the people who would be burdened by the law. In other words, since not many people would be burdened by this law, it doesn't matter what kind of burden it place son the people who would be burdened. Even Rheinquist recongnized that as a ridiculous standard.

That, my blind little friend, is what notify means in the real world.

Posted by: kevin | Oct 31, 2005 3:51:40 PM

Do you people understand what notify means?

Very well. You, apparently, do not.

Posted by: nolo | Oct 31, 2005 3:55:10 PM

I'm with Kevin on this one, Toke - you seem to settle on "notify" when the question is "Why notify?" and "what are the consequences that could possibly come out of notification?" Ignoring those, and referring to "rights of a husband"... rights of a husband to do what, exactly? Presumably, you mean rights to talk or otherwise prevent her from getting an abortion. Well, what other means of prevention miught he have? How coercive might they be?

I'm sorry, but step away from "notify" for a minute. How is setting up a circumstance in which a man might forcibly prevent a woman from getting an abortion not an undue burden?

Posted by: weboy | Oct 31, 2005 4:01:52 PM

So we should base our law on the assumption that husbands are abusive?

Posted by: dan | Oct 31, 2005 4:07:30 PM

As Billmon's discussion of Casey points out (link here), Judge Alito had to treat as "insignificant" a great deal of data indicating that notice of a pregnancy is a flashpoint for spousal abuse. So the concern is not based on an "assumption."

Posted by: nolo | Oct 31, 2005 4:28:22 PM

So we should base our law on the assumption that husbands are abusive?

Posted by: dan | Oct 31, 2005 1:07:30 PM

Well, if a wife would not voluntarily tell her husband about a pregnancy and a desire for abortion, in my mind the mostly likely reason is that, yes, he is abusive in one way or another. And this law only applies to wives who would not voluntarily tell their husbands. (And it's not like opposition to a notification requirement assumes abuse, just considers the possibility. A woman declining to notify her husband would never be considered proof of abuse.) So, to answer your question: yes, when it is most likely that a husband is being abusive, we should base our laws on the (possibility, not assumption) that husbands are abusive.

Posted by: Cyrus | Oct 31, 2005 4:45:03 PM

Well, dan, you could turn that around a couple of ways:

It's okay, as Kevin asks above, to have a few women abused in pursuit of overall "notification"?

Or, we should base our law on the assumption that an adult woman cannot decide for herself the circumstances which make it right to discuss terminating a pregnancy with her husband and the circumstances when it would not be? Doesn't that seem like the kind of intrusive government involvement in the minutiae of our lives that conservatives claim to oppose? Or is that libertarians? I get so confused with all those angels on the head of that pin...

But part of this is fascinating, I must admit. No one, it seems, wants to discuss just what it is that "notification" is meant to accomplish, just what won't happen if you do it. I still wonder - what, exactly is "notifying a husband" meant to accomplish? And to what length is it permissible for the notified spouse to go in an attempt to prevent his wife's abortion?

Posted by: weboy | Oct 31, 2005 4:50:19 PM

We can argue about notification all we want, but both Alito's Court and the Supreme Court thought it out of bounds.

Posted by: Ezra | Oct 31, 2005 5:14:10 PM

"I think there's a moderate majority that just refuses to believe how bad it could get."

Stay tuned, weboy--I think, maybe, after Katrina, Plame and Meiers, they're starting to catch on.

Posted by: BroD | Oct 31, 2005 8:14:07 PM

The law in question did not require a woman to notify her husband if she thought this would endanger her.

Posted by: James B. Shearer | Oct 31, 2005 8:37:40 PM

Instead it required her to explain the situation to a judge and let /him/ make the call. Yeah, that sounds like a winner to me right there, allowing someone else to sit in judgement over whether I'm being abused or just whining about a little hittin'.

Posted by: Tucker | Oct 31, 2005 8:50:21 PM

Tucker, as I understand it the woman simply had to certify that she would be endangered if she told her husband.

Posted by: Jmaes B. Shearer | Oct 31, 2005 9:08:34 PM

"what, exactly is "notifying a husband" meant to accomplish?"

Since you guys like putting out the exception....

What if the husband and wife don't communicate well, and he would have wanted to keep the baby, she would too if she thought he did, but she didn't tell her husband and aborted their baby. He finds out later and beats the shit out of her.

At least give him a chance to try to persuade her out of killing what is part of him as well as the mother.

And if she is afraid he is going to smack her when she "notifies" him, she can call him on the phone!

What if she is seven or eight months pregnant, she is mad at her husband and wants to get back at him by killing a viable baby. She should be allowed to abort that baby without letting him know?

What if she has an episode of "pre-partum, post-partum depression" and has a partial birth abortion. Shouldn't this woman have to prove her husband knows she is going to have a third trimester abortion?

It could happen!

Posted by: Captain Toke | Oct 31, 2005 9:46:57 PM

>>I think there's a moderate majority that just refuses to believe how bad it could get.

Not to invoke Godwin's Law, but this is EXCATLY how countries turned to fascism. Slowly. Not because there were so many evil people, but because good people were not motivated to stop them.

Posted by: fasteddie | Nov 1, 2005 8:54:45 AM

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