Finito To 'Scalito'?

This column was written by David Corn.

There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant U.S. attorney general, a U.S. attorney and an appeals court judge. He is reputedly intelligent and scholarly. There will be no major disagreement over document releases; there are fifteen years of appeals court decisions for his friends and foes to scrutinize. That leaves the Democrats one avenue of attack: Alito would be bad for America.

The liberal Democratic senators and the progressive groups are already trying to affix a big red "E" to Alito's robe — that's "E" for "Extremist" — and pointing out how conservative he has been on the Third Circuit Court of Appeals. For instance, he wrote a dissent in which he upheld the provision of a Pennsylvania law that would have required a woman to notify her spouse before obtaining an abortion. (A Supreme Court majority later disagreed with Alito.) He has written decisions that weaken civil rights law, particularly in the areas of race and gender.

In other cases, he wrote a dissent arguing that Congress did not have the power under the Commerce Clause of the U.S. Constitution to regulate the transfer and possession of machine guns, and he wrote a majority opinion (later reversed by the Supreme Court) that claimed Congress could not require state employers to abide by the Family and Medical Leave Act of 1993. This suggests he might have a rather restrictive view of how far the federal government can go — say, with environmental laws — to protect its citizens.

But the Democrats need to do more than rely on the usual extremist-baiting. They have to state clearly that they are opposing Alito — whose philosophical similarity to Justice Antonin Scalia has earned him the nickname "Scalito" — for policy reasons. The Supreme Court, they should argue, keeps becoming more significant in the lives of Americans, deciding critical matters (privacy rights, religious controversies, environmental laws, assisted suicide and at least one presidential election). Consequently, Democrats should say they are now going to judge potential Justices on the basis of where these men and women may lead the nation.

Yes, in the past, Republicans have voted for qualified Court nominees who were liberal (Ruth Bader Ginsburg, for one), and Democrats have voted for qualified Court nominees who were conservative (Scalia, for some reason, comes to mind). But the Democrats should candidly declare such days are over — at least for now, with the Court hanging in the balance and Bush actively moving to shove it in a distinctly ideological direction. Democrats have no obligation to watch and wave as Bush and his now-happy and unified conservative base proceed in a manner they believe to be inimical to the interests of the nation.

So Democrats should be honest and blunt and declare they are opposing Alito because of how they expect he will vote. And they should explain — in broad, values-laden language, not the rhetoric of process — what they fear and how Alito's decisions could affect Americans. There is nothing wrong with a senator proclaiming that protecting reproductive rights and privacy rights is a top priority and that he or she would not vote for a Justice who is likely to restrict those rights or even seek to abolish some of them. The same goes for any senator who believes abortion is mass murder. Why should such a senator vote for a nominee who would protect such a practice?

Confronting the Alito nomination in this fashion could lead to the dreaded "nuclear option" — if (and it may be a decent-sized if) Senate Democrats, who split on the John G. Roberts Jr. nomination, come together in opposition to Alito. The Democrats have enough votes to mount a filibuster. Such a move would no doubt be met with a revival of the GOP effort to change the Senate rules (which only requires a vote of fifty-one or more senators) to eliminate judicial filibusters. When the "nuclear option" was defused last spring, the seven GOP members of the so-called Gang of Fourteen agreed that filibusters could be used in extraordinary cases. In a way, the compromise agreement handed the Republican Seven a veto over the Democrats' deployment of a filibuster. If these Republicans did not consider a situation "extraordinary," they presumably would join the rest of the Republican Senate caucus and vote for the nuclear option, killing the filibuster at hand (and any future filibuster). It's early in the nomination process for Alito, but my hunch is that these GOPers will not buy any Democratic claim that Alito is an "extraordinary" case. There's nothing extraordinary about nominating a fellow with Alito's résumé to the Supreme Court. So a strong Democratic challenge to Alito could trigger Armageddon in the Senate.

Should that happen, here's something else the Democrats must consider: Do not go hog-wild over the Republican attempt to rewrite Senate rules by voting to eliminate judicial filibuster. That's not to say that Democrats should not vigorously challenge it. But they are unlikely to score political points — and win over the public — with the argument that arrogant, power-drunk GOPers are changing Republican traditions for their own benefit. Who beyond the Beltway — besides that minority of Americans who already fixate on judicial fights — are deeply concerned about Senate rules and traditions? Again, the Democrats will have to find a way — and this could be tough — to remain focused on what the nuclear option tussle means for Americans in terms of the Alito nomination. To do that they will have to convince people that Alito is likely to inflict damage upon the country.

This, too, could be difficult. Alito is not as smooth and polished as Roberts, but he is said to possess a calm and mild manner (though he has been described as lacking personality). It will not be easy for Democrats on the Senate Judiciary Committee to depict Alito as a threat after fencing with him over the intricacies of civil rights law. Remember Ted Kennedy wrestling with Roberts over the specifics of various antidiscrimination laws? How many Americans could follow that and get excited about the legal citations and arguments Kennedy and Roberts hurled at each other?

If the Alito nomination becomes the titanic battle that both sides in the judicial wars have been anticipating for years, the Democrats and their allies in the lobbying groups will have to create a new playbook to have even a chance of beating back Alito. If they stick to the same old strategies, they could end up wishing that Harriet Miers had fared better.

By David Corn
Reprinted with permission from the The Nation