David Corn has a refreshingly honest piece arguing that, if Democrats wish to defeat Samuel Alito, they have to move beyond tired rhetoric and be candid about why they oppose him:
Can Dems Say ‘Finito’ to ‘Scalito’? (The Nation)
There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant US attorney general, a US 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.
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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?
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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.
Now, in all candor, I think the Democrats would lose this fight. Indeed, I suspect Corn does, too. But I agree with him that, absent some stunning revelation about Alito, the Democrats are going to lose anyway. They might as well at least do so on their own terms.
Such a fight would be good for both parties and for the country. Rather than tarring him as a monster and reprising the “Robert Bork’s America” line of attack, Democrats will come off much better if they concede up front that Alito is highly qualified and a decent, honorable man to boot but that they strongly disagree with his jurisprudence.
Further, it is not entirely unreasonable to pursue this line of debate. While it has theoretically been the case that Supreme Court nominations were “apolitical,” it has long been nonsense. The judiciary has long since ceased being “the least dangerous branch” and, indeed, have decided many of the most controversial issues of the last half century. Arguing on that basis is for more credible than a smear campaign against a good man.
Correction: I originally misspelled Corn’s name as “Korn” throughout. For some reason, I thought that’s how he spelled his name.
