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.