12 January 2006

- Stare Decisis -

So I've been listening on and off to the Alito hearings and, like the papers, I've noticed that basically none of the senators has anything to say. Of course, you might expect this from the Republicans, who are essentially just playing defense. But what are the Dems up to? At best when the SCOTUS does overturn Roe v Wade, they'll be able to yell "I told you so" for all the good it will do.

The difficulty, I think, is that the Dems have no ground other than ideology to stand on. Once again, the Dems (and, it should be admitted, their activists) have shown little ability to think strategically. They can't even win battles, but that's another issue... In any case, as I said at the time, I thought the Dems were playing the Roberts' hearing all wrong. Instead of using him to set a standard for intellectual competence, voting in support of the nomination with reservations, they voted exclusively on ideological grounds.

As a consequence of the votes on Roberts, we now have a nominee who is more ideological and less competent, and the Dems can bring arguments only against the ideology. But Alito is not so conservative to be a nut case (or even if he is, he has the sense not to come across as one), and with Roberts the Dems established a litmus test, so all the alarm raised about Alito's ideology, though no doubt something to be worried about, is completely unpersuasive. What sort of conservative would the Dems accept? Turn the question around, ask what sort of liberal the Repubs would accept of a Dem nominee, and the problem becomes clear. So I think you have to have some criteria other than just ideology if you want to be politically effective in opposing a nominee. Otherwise, We the People just tune out and chaulk it up to another instance of political posturing.

That criteria might have been competence. Had the Democrats voted for Roberts, they could have been running a constant comparison with Roberts and found Alito lacking. The Republicans would have actually been on the defensive and would not have been able to just phone it in. There also would have been the real danger of important slips (and the slips that have occurred might have gained in import). The stakes for Alito would have just been so much higher and he wouldn't be able to be confirmed simply by sitting there watching the senator stage show play out before him. The hearings would certainly be more interesting and informative. We probably would even have learned something about Alito and his thinking. Now Alito will just come out of the hearing pissed at the Dems, his ideas about liberals all but confirmed. Who believes he won't just join the court to become the third vote for Scalia? And Roberts has no reason to remain particularly flexible as well. Go us.