February 2, 2006
What Does the Alito Battle Tell Us?
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.
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.
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.
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.
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
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.
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.
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.
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
McIntyre is the co-founder of RealClearPolitics.
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