February 2, 2006
What Does the Alito Battle Tell Us?

By John McIntyre

From a political standpoint the question has to be asked: why did the Democrats perform so miserably on the Alito nomination and can any longer term political insights be drawn over how the O’Connor vacancy was filled? There is no question that the sight of Chief Justice Roberts along with the freshly sworn in Justice Alito at Tuesday’s State of the Union brought enormous satisfaction to conservative viewers and had to leave a sick feeling in many a liberal’s stomach. At 50 and 55 years old, respectively, John Roberts and Sam Alito stand to serve for a solid quarter of century on the High Court and while it is sometimes hard to predict how justices will “evolve” on the bench, all indications are these two new justices are much more akin to Scalia and Thomas than Kennedy and O’Connor.

The reversal of the Harriet Miers fiasco was a testament to the strength and confidence of the conservative movement. Without rehashing the entire debacle, Miers was forced out for two reasons: 1) she just was not “A+” quality like Alito and Roberts and 2) she was not a reliable judicial conservative like Alito and Roberts. Had she not failed on both of these points she would have been able to hold on and get confirmed, and in all likelihood she would have been a justice much more in the mold of Sandra Day O’Connor as opposed to Alito who didn’t earn the nickname “Scalito” for nothing.

Miers has already become a footnote in history, but the Miers/Alito switch is liable to have a profound consequence on American jurisprudence for the next 25 years. None of this is lost on the Left. They know Roberts and Alito are disasters for progressives and they also realize they are one more vacancy away from a permanent five-vote ruling majority of Roberts, Scalia, Thomas, Alito, and Bush appointment #3. This is what makes the Democrat response to Alito so perplexing and ultimately revealing.

Democrats were justifiably infuriated that the Right was able to muscle Miers out for a considerably more reliable, conservative nominee. However, when it came time for a response Democrats never really launched a credible attempt to prevent Alito’s nomination. I’m not saying Senate Democrats should have beaten Alito; they were always going to be a considerable underdog in the confirmation fight just based on the simple 55-45 math and the 200 year precedent that Presidents pick the nominee.

But you would have expected Democrats to at least get in the game and have a plan. Instead what you saw was a rudderless, inept attack encapsulated by the ethically challenged Ted Kennedy smearing Alito as unethical and a racist, culminating in a devoted wife breaking down in tears. If Bork was the highlight of the Left’s power over the process and conservative impotence, Alito was the total opposite.

Given the stakes for the Left with their minority status in the Executive and Legislative branches and their reliance on the Judicial branch to “pass” much of the progressive agenda they can’t seem to sell to the public on election day; one would have expected a more coherent strategy to defeat Alito. As the hearings began I wrote:

These next few weeks are in many ways the beginning of the ’06 and ’08 campaigns, and the Alito nomination battle will be a comment on the strength and unity of each party. If a filibuster is mounted we will see whether the GOP caucus is as aggressive and committed to winning as the Democrats. If we don't see a filibuster, I suspect that would be an indication that the Democrats are weaker and more divided than is commonly thought in Washington.

While the press makes a big deal about the risks to the GOP majority in ’06, pointing to Abramoff, Iraq, and Bush’s slumping poll numbers, what they miss is that most of the current vulnerability to the Republican majorities in the House and the Senate comes from Republicans not having the courage or the fortitude to act like conservatives. The DailyKos/Howard Dean/ MoveOn.org crowd may feel that Democrat weakness comes from a similar phenomena of Democrats not acting like Democrats, but they are delusional if they think that pushing the far-left “netroots” agenda will deliver them national victories in ’06, ’08 and beyond. The Democrats’ problem is they have completely abandoned the John F. Kennedy/Scoop Jackson/Richard Daley wing of the party. The McGovern offspring are taking over the controls, leaving the silent majority of non-hard-left Democrats increasingly marginalized and without a political home.

There is no question that Republicans have their tensions, especially between the libertarian/small-government wing and social conservatives, but the overriding issue of national security is a powerful force that keeps these sides mostly on the same page. For Democrats it is the exact opposite: the dominant issue of national security splits the party right in two. And as the Alito cloture vote showed, that split is not relegated to just security issues. It is not insignificant that every single Democratic presidential contender voted to filibuster while every single red-state Senator who isn’t running for president and not minority leader voted for cloture.

Republicans can win presidential elections and hold majorities in Congress running as conservatives, but there are not enough blue-states for Democrats to run on filibustering the Patriot Act and qualified judges to win nationally. The Alito cloture vote could be a signal that more and more red-state Democrats want to get off the Howard Dean bus.

John McIntyre is the co-founder of RealClearPolitics.

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