(1) Unless
he turns out to be a secret partner of Jack Abramoff or a member
of a terrorist cell, Alito is clearly qualified for the high court;
(2) They
are starting just about 25 years too late.
The shame
of and for the leadership of the Democratic Party over the past
quarter-century is that they have been unable or unwilling to
engage Republicans (and conservatives in general) in battles over
ideas. Perhaps the conservatives running the country now are too
ideological -- I certainly think that -- but since the election
of Ronald Reagan in 1980, the Republicans have been the party
of ideas. Democrats have been satisfied, foolishly, to focus on
personalities rather than policies and programs.
Judge Alito,
like the new chief justice, John Roberts, is one more example
of the intellectual triumph of the right in American politics.
They and other Ivy League conservatives, including Kenneth Starr
and Theodore Olsen, who argued for the Republican Party before
the Supreme Court that made George W. Bush president in 2000,
were attracted to or recruited into the Justice Department in
1981 in a conscious effort to change legal ideas and the makeup
of the federal judiciary.
"Band
of brothers," they called themselves in those days, a talented
cadre who often felt isolated and resentful in the liberal environs
of the country's best law schools. Being smart was not enough
at Harvard (Roberts) or Yale (Alito) for the young men and women
who found themselves and each other in 1981 in the conservative-friendly
official Washington of Reaganism.
The same
kind of thing happened in journalism, producing a generation of
influential conservative columnists including William Kristol
(Harvard) of The Weekly Standard and David Brooks (University
of Chicago) of The New York Times. All Democrats and
liberals seemed able to counter with was comedians, beginning
with Al Franken (Harvard), who made his name writing for "Saturday
Night Live" and the movies.
Meanwhile,
back in Washington, even though Yale Law School graduate Bill
Clinton was president for eight years, the Democrats deteriorated
into a party of tactics rather than strategy, much less ideas.
Now, the loyal if limp opposition is talking about the tactics
of defeating an apparently unbeatable Supreme Court nominee, rather
than hammering at the incompetence, stupidity and deviousness
of a White House waging war and torturing prisoners around the
world while American cities sink into the sea.
Even with
my own bias toward Republican judges from New Jersey -- my father
was one -- Judge Alito would not be my first choice by a long
shot. Whatever he really thinks about abortion laws and the rights
of employees, I do not like the fact that he is a judge whose
tendency has been to restrict individual access to a day in court,
at a time when the United States is looking more and more like
an emerging police state.
But the idea
of making Alito the issue of the day and talk of filibusters and
"nuclear options" is political silliness, self-indulgent
minority politics. Democrats and liberals should rough up the
nominee some, make him define himself, and then make some liberal
points about rights of privacy, rights of workers, rights of women.
But, barring
revelations unforeseen now, they have to remember that the Constitution
gives presidents the right to choose Supreme Court justices. And
Democrats should remember, too, that the last two liberal justices,
Clinton's choices, easily won the votes of most conservatives
in the Senate. Justice Ruth Bader Ginsburg was confirmed 96-3.
Justice Stephen Breyer was confirmed 87-9.
Excellence
counts. Alito seems an example of that; the rest of Bush's governing
choices don't. Democrats, trying to figure out how they became
the minority, should go back 25 years and more to study how the
Republicans became the majority.
