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January 14, 2006

Sammydammerung Denied

By Neil the Ethical Werewolf

I’ve always respected Matt Yglesias' tactical insight. His Social Security post from last March is probably the best single-issue tactical post I’ve ever seen. (Read it if you haven't – the analysis of intra-GOP tensions is particularly excellent, and time has proven him right.)   This is why I was stunned at the lack of sense he was making on the Alito nomination, all week long.

We start with a bit of polling literalism:

In an effort to further provoke the ire of the blogosphere, here's a poll showing that 53 percent of voters think Alito should be confirmed and 27 percent think he shouldn't be. 

But then you get other polls where the vote comes out 17-7, with a whopping 70% unable to say.  (77% had neither a favorable nor unfavorable impression.)  This is very soft support.  Remember, Alito hasn't been in the public eye for very long, and he's lacking in any exciting qualities that win firm support from average voters.  Fight the media battle well, and those numbers move at Vince Young speeds. 

In the same post, Matt goes on about how the other big current issues are bad for the Republicans -- culture of corruption, gas prices -- and we shouldn't do anything that displaces people's attention from them.  He thinks that everything will come down to the question of whether filibustering is okay, which isn't an issue where Democrats do particularly well.  Maybe this would've been the issue if we were talking about seven lower-court judicial nominees, but here we're talking about one guy for a big job.  Democrats talking about his viciousness and incompetence versus Republicans making noises about Senate procedure is a battle we win.  Remember, there's not much that's inherently attractive about the guy, and it's not like we're up against a widely beloved president.  We just need to make a compelling case against Sammy Alito. 

And there is a compelling case to be made.  Doe v. Groody is the gift that keeps on giving -- Scott, Lindsay, and Iocaste have the goods.  You get the sound bite about how he let the cops strip-search a 10-year-old girl, you get to tease him for his telepathic theory of interpretation (he claims that the magistrate intended to let the police search all occupants, when the warrant doesn't say that and there's no publically available evidence to suggest it), and that segues you into criticizing his competence as a judge.  And then there's Roe, which he doesn't regard as settled law.  You get 69% saying that they'd oppose him if he were going to make abortion illegal.  Now I'm guessing that we don't get a full 69% of people behind us just with his Roe views, but it's definitely something to hit him with.  People who know more than I do about his past rulings can find some more cases to beat him up on. 

Let's all be Harry Reid for a moment and consider the broader narrative starting with Harriet Miers:

I have not forgotten that Judge Alito was only nominated after the radical right wing of the President's party forced Harriet Miers to withdraw.  The right wing insisted that Justice O'Connor be replaced with a sure vote for their extreme agenda.  Four days of hearings have shown that Judge Alito is no Sandra Day O'Connor.

Keep this going, and the media battle is yours to win.  Relative to Miers and Roberts, Alito is further out of the mainstream.  Throw on a few anonymous leaks about how Alito is crazy and unless he proves himself reasonable we're going to filibuster, and you shape the coverage at will.  The position of undefined political entities will be determined relative to defined ones, and we could've defined Alito a lot further right than we did.  Even if we couldn't get enough people together for a filibuster, Biden and Feinstein could've kept quiet about how things were going until the hearings were done, so that Alito would've been seen as filibuster-worthy from the start. 

Speaking of the filibuster, we've got this from Matt:

Realistically, the question facing the Alito nomination has always been whether Alito will be confirmed and the nuclear option implemented or whether Alito will be confirmed without the GOP needing to break a filibuster. But a congressional minority can't actually stop the Republicans from doing what they want to do.

But we've got this from Mark Schmitt in November:

But to pull off the Nuclear Option banning filibusters on judicial nominations will still require an extraordinary exercise of leadership and party discipline to force Senators to do something many of them don't want to do. Frist couldn't quite pull it off five months ago, he sure can't do it now...

...the prospect of a "final showdown" in which Alito is confirmed by the Nuclear tactic is just not going to happen in a Senate effectively run by Harry Reid.

If Matt has a story to tell about why Schmitt was wrong, I'd really like to hear it.  That's not just rhetorical -- a Yglesias-Schmitt exchange on the issue would be educational for me and probably a lot of other people.

Back in November, I bet money on 10:1 odds on the Democrats beating Alito.  (Don't worry, a certain Texas quarterback has won me more than I'll lose here.)  I'd been watching Harry Reid from a year ago when he laid the groundwork for undermining the Nuclear Option, and I knew he was going to fight this as hard as he could.  Bold Democrats beat Privatization and the Gulf Coast Wage Cut, and forcing Bush to play around the filibuster by nominating Roberts was well done.  (If you consider Roberts a replacement for Rehnquist, Roberts might've moved the court left.)  Sure, a filibuster takes 41, and we've got 2 in Arkansas, 3 from the Dakotas, and 1 in Nebraska.  But if Alito is seen as a bad judge or a crazy ideologue, and Frist loses control of his people, we have a shot at flipping some of the Republicans who have pledged support for Roe, at least for the up-or-down vote. 

Sadly, the Senate isn't the House.  A Minority Leader can't make members vote right, or keep their loose lips from sinking ships.  I'm as personally impressed by Harry Reid as I was before -- he gave the right soundbites, I can't see a wrong move he made, and he still looks to be playing for something.  If only his Harriet Miers gambit had come through!  I'm a lot less impressed with the Judiciary Committee team -- Joe Biden and his hat in particular.  They didn't do the Doe v. Groody grilling properly and passed up the attack on Alito's competence that could've resulted.  Worst of all, they tipped their hand early and gave away the ability to define their enemy. 

Barring a miracle forever proving that Kossacks are God's chosen people, Alito will be confirmed.  Roe will survive if John Paul Stevens does -- depending on whether Roberts meant what he said about it being "settled law", we're still up 6-3 or 5-4.  Black-robed conservatives will still be able to whittle away at abortion rights around the edges.  The theocratic right will feel loved by their Republicans, not cheated by Harriet Miers or some Reid-approved post-Alito pick, and happily come out to vote in November. 

January 14, 2006 in The Supreme Court | Permalink

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Comments

I get the impression that Reid wanted the fight, but the Judiciary Committee Senators killed the chance of that. It's happened before; remember, in the nuclear option showdown, Reid reportedly wanted the final confrontation and the Gang of 14 compromise wasn't his bag. He -- or his staff -- has adopted a confrontational style well-suited to a minority party (the Senate now is basically like a Parliamentary chamber, and Reid seems to be trying to turn his side into a full-time opposition party), but it doesn't work unless you have nearly the whole party on board, the way they did for the votes in December.

Posted by: M.A. | Jan 14, 2006 2:40:05 AM

Roe will survive if John Paul Stevens does -- depending on whether Roberts meant what he said about it being "settled law", we're still up 6-3 or 5-4. 

Just to beat my own personal favorite dead horse, I'm not entirely sure we can count on this. I know no one believes me, but I'm telling you - Kennedy is wobbly on Roe! I'm hoping considerations of ego will prevent him from reversing himself, but if you read his opinion in Casey, You see someone teetering on the edge of turning over to the dark side. My bold prediction: if the Court gets an opportunity to reconsider Roe, Kennedy flips.

However, as Neil hints, I think there's at least a small chance that Roberts will come through. But I wouldn't bet on it.

-Dada

Posted by: Dadahead | Jan 14, 2006 3:58:20 AM

I don't understand the defeatist attitude of some Dems. Even Spector's words were along the lines of we can't expect anything better. Yes, we can! We have to fight against each and every one of these nominees, until we get a good one. This sort of attitude is why people say Democrats don't stand for anything. If we talk about opposing extremists, then don't do all we can to oppose them, what do we stand for anyway?

Posted by: Unstable Isotope | Jan 14, 2006 9:42:39 AM

This is a losing battle for Dems. Alito is not, in fact crazy or an idealogue, and the strip search case will get you no traction with the general public, nor will Roe v. Wade. After all, the ONE concrete pledge Bush made during the election was the type of judge he would nominate. We lost this battle and should focus on issues that we can win.

Posted by: justin | Jan 14, 2006 10:34:11 AM

Leaving aside justin's mole-like defeatist advice (and I have yet to see anything which suggests that Alito is not an ideologue -- he thought Bork should have been confirmed), one must note that he's correct in one particular, though not in the way he thinks he is:

After all, the ONE concrete pledge Bush made during the election was the type of judge he would nominate.

That's absolutely true. Bush did make that promise. He promised he'd nominate judges who would take down Roe v. Wade.

They may not do so immediately. They may keep allowing restrictions on to the point where Roe is no longer meaningful. At that point, the Republicans can have their cake and eat it too. Roe can still be used as shorthand for rallying the base, and there will be no meaningful right to abortion for women in at least half of the states in the country. That's what Alito and Roberts are for.

And of course, Alito's past sycophancy toward the imperial presidency is hardly reassuring.

Posted by: paperwight | Jan 14, 2006 10:44:18 AM

Can someone go find out what Bork's polling numbers were at about the same time?

Posted by: Matt | Jan 14, 2006 12:10:52 PM

But Neil, what about Harry reid's throwing motion? Won't that be a problem at the next level?

Posted by: JimMadison's Dog | Jan 14, 2006 12:48:00 PM

Is anyone else terrified at the fact that our nation's future rests on the hope that an 85-year-old man will live another three years. Or that Anthony Kennedy and John Roberts are our bulwarks against radical extremism?

Posted by: Greg | Jan 14, 2006 1:13:58 PM

Spot-on, Ezra.

Posted by: djw | Jan 14, 2006 2:03:57 PM

Paperweight--how exactly can the Democrats win this one? Do you really think the Democrats will gain seats in 2006 over this? Are people that voted Republican in 2002 and 2004 really going to say "gee, I didn't realize they would nominate someone who may overturn Roe v. Wade"?? The people who care about this already vote Democrat, and I would venture a guess that the Alito (or maybe more like Roberts) view on abortion is OK with most of the country--i.e., some restrictions are OK, but an outright ban is not. When I say Alito/Roberts view on abortion, I mean the what many people believe the of EFFECT chipping away at Roe v. Wade would have.

Personally, I think that people have become so used to abortion rights that they forget what life was like without them and have become complacent. The best thing supporters of legal and accessible abortions can do now is to organize at the local level and get ready for a fight.

Also, I would be surprised, from what I know of Roberts, that he would vote to overturn Roe. Alito, however, I'm not so sure of.

Posted by: justin | Jan 15, 2006 1:05:54 PM

Is anyone else terrified at the fact that our nation's future rests on the hope that an 85-year-old man will live another three years.

The shift in power *to* the courts came about by the left attempting to do end-runs around the democratic process when they didn't have the numbers. Why give up when you might find a sympathetic judge to help you? Now that the power has shifted, the left must lie in the bed they made.

Posted by: Fred Jones | Jan 16, 2006 11:57:32 AM

The best thing supporters of legal and accessible abortions can do now is to organize at the local level and get ready for a fight.

If Roe is overturned, abortion will not all-of-a-sudden be unlawful. It will pave the way for states who do not wish to engage in abortion to "opt-out" and those who do....can. I don't see this as a negative. This terrible unanswered question is splitting the country and this is a way to settle it.

Posted by: Fred Jones | Jan 16, 2006 2:43:44 PM

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Posted by: Truck a | Jun 23, 2007 2:51:38 PM

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Posted by: judy | Sep 29, 2007 11:23:22 AM

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