But this is just silly.
NO screams the cover of this week's TNR, referring to Alito.
In their editorial, The Editors give a bevy of good reasoning for opposition (it's all about the machine guns and the unitary executive.) But then they conclude uselessly:
Although the decision is not easy, our concerns about Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito's confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.
If the Dems vote no as a bloc, it might have some minute bit of symbolic value, a sign of what the Party would do once back in a majority. But it will also have all the downsides The Editors mention of breaking with the tradition of bipartisan confirmations and making trouble for future Dem presidents with none of corresponding upsides of actually getting rid of Alito -- and maybe even embittering him like some people say happened with Thomas. And there's no real long-run political benefit to the strategy of taking this "stand" except possibly for politicians trying to win future presidential primaries who are all going to vote no anyway like they did on John Roberts. No Americans outside academia or the activist bases of the parties thinks enough about how specific Supreme Court Jusitices vote to have an opinion.
The only effective choices here are filibuster or not, on the assumption that the Republicans don't actually have the guts to go nuclear. It's a hard choice but it's really the only one that matters.
Update: A clarification in response to John in comments: I technically agree with TNR that the Dem Senators should vote no, and most of them are going to do so. If the Dems had even a little majority, the Editors' position would be a serious, important one to take. Because of the fact of the minority, though, it's barely a position at all (though I'd say it still beats voting yes in the interest of comity.) Personally, I think like most liberals that Alito is out of the mainstream in a way Ginsburg and Breyer were not among liberal judges and that Kennedy and Souter were not among conservative judges. The SC should basically be centrist, composed of justices not too far from the mainstream of either party and acceptable to the majority of American interests, with maybe one or two outliers to represent different schools of thought in the opinions. But Alito represents a third, and possibly a fourth permanent representative on the court of wacky new-right originalist theory. Is that worth fighting? TNR's Editors say yes, but only with the sort of weak symbolic response of a collective no-vote that will fade from public conciousness in a couple of years' time unless Alito turns out to be moderate, in which case the GOP can use it as demagoguery. If Alito is as bad as The Editors say, then he's got to be worth risking the nuclear option over. Given the Democratic minority, it's the only question with teeth.
In their editorial, The Editors give a bevy of good reasoning for opposition (it's all about the machine guns and the unitary executive.) But then they conclude uselessly:
Although the decision is not easy, our concerns about Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito's confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.
If the Dems vote no as a bloc, it might have some minute bit of symbolic value, a sign of what the Party would do once back in a majority. But it will also have all the downsides The Editors mention of breaking with the tradition of bipartisan confirmations and making trouble for future Dem presidents with none of corresponding upsides of actually getting rid of Alito -- and maybe even embittering him like some people say happened with Thomas. And there's no real long-run political benefit to the strategy of taking this "stand" except possibly for politicians trying to win future presidential primaries who are all going to vote no anyway like they did on John Roberts. No Americans outside academia or the activist bases of the parties thinks enough about how specific Supreme Court Jusitices vote to have an opinion.
The only effective choices here are filibuster or not, on the assumption that the Republicans don't actually have the guts to go nuclear. It's a hard choice but it's really the only one that matters.
Update: A clarification in response to John in comments: I technically agree with TNR that the Dem Senators should vote no, and most of them are going to do so. If the Dems had even a little majority, the Editors' position would be a serious, important one to take. Because of the fact of the minority, though, it's barely a position at all (though I'd say it still beats voting yes in the interest of comity.) Personally, I think like most liberals that Alito is out of the mainstream in a way Ginsburg and Breyer were not among liberal judges and that Kennedy and Souter were not among conservative judges. The SC should basically be centrist, composed of justices not too far from the mainstream of either party and acceptable to the majority of American interests, with maybe one or two outliers to represent different schools of thought in the opinions. But Alito represents a third, and possibly a fourth permanent representative on the court of wacky new-right originalist theory. Is that worth fighting? TNR's Editors say yes, but only with the sort of weak symbolic response of a collective no-vote that will fade from public conciousness in a couple of years' time unless Alito turns out to be moderate, in which case the GOP can use it as demagoguery. If Alito is as bad as The Editors say, then he's got to be worth risking the nuclear option over. Given the Democratic minority, it's the only question with teeth.
2 Comments:
Laura-
Are you saying Dems that, since a filibuster wouldn't work, the best thing that Dems can do is vote to confirm, grin and bear it, wait for the lefties to calm down, and get on with life? I'm mostly with you on that, although I am glad that there are some Dems who will be making protest votes. For me, it comes down to the fact that lots of Supreme Court decisions cannot be predicted by ideology, so we just have to accept whatever he hands down and prepare to deal with it legislatively and politically. It's like that old saying, "Don't get mad, get even." The best solution to someone like Alito being nominated is not to bitch and moan about it, but plotting how best to get back into power.
If one assumes that the Democrats will one day return to a Senate majority, calling the Republicans on the 'nuclear option' makes sense. Either the fillibuster would succeed in defeating Alito, or, in the future, 51 confirms any judge a Democratic president might nominate.
Also, while the ideal might be sensible, centrist justices, you are being very naive about the realities of today's politics. At one time, both parties 'ran to the center' to get over the magic 50%. Now, the Right has shown (it seems) how to completely abandon the center and still win. The only hope for 'balance' in our future is not a panel of rational jurists, but a nearly equal number of loons from both wings. Of course, that'll be about as stable as nitroglycerin.
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