Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.This is a tremendously important lesson. I have heard so many liberals say that they only want to talk about ideology. They want to rely on the portrayal of judging as ideological, but then deny the President his choice of ideology. This doesn't work, and it shouldn't work. If we accept the foundation of the argument -- that judging is ideological -- then there is no trump to the President's appointment power when his party controls the Senate. Your unhappiness with the President's choice of ideology has one answer: Win elections. By declining to frame arguments in terms of legal analysis, the Democrats empowered the nominee to win by simply explaining a lot of legal arguments.
In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.
Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.
Several Democrats expressed frustration over what they saw as the Republicans outmaneuvering them by drawing attention to an episode Wednesday when Judge Alito's wife, Martha-Ann, began crying as her husband was being questioned. That evening, senior Democratic senate aides convened at the Dirksen Senate Office Building, stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation - as opposed to, for example, images of Senator Edward M. Kennedy, Democrat of Massachusetts, pressing Judge Alito about his membership in an alumni club that resisted affirmative action efforts.We'll never hear the end of the wife's crying. It's becoming mythic. If only that hadn't happened, we could have gotten some footing out of Kennedy badgering him about the alumni club. But the crying resonated because we experienced the questions as unfair and because we too were exasperated by what we could see was political posturing.
"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats' problems. "It got front-page attention. It was on every local news show."
Beyond that, Democrats said Judge Alito had turned out to be a more skillful witness than they had expected. They said Democrats on the Judiciary Committee had been outflanked in their efforts to pin down Judge Alito on any issues, and that some of the questioners - notably Senator Joseph R. Biden Jr., Democrat of Delaware - devoted more time to talking than to pressing the nominee for answers.
We hear a lot about the crying, but there is at least as much talk about how long the Senators spoke. They seemed to be making political speeches, which really was consistent with their own bad decision to portray judging as a political enterprise. If we'd believed that portrayal, their expressions of political preferences would have seemed quite relevant. But people aren't buying that portrayal, and they shouldn't. What judges do is different from what Senators do, and they need arguments that make sense as a criticism of judging.
"[W]hat has happened is that this has turned into a political campaign," [Senator Kennedy] said. "The whole process has become so politicized that I think the American people walk away more confused about the way these people stand."How are people confused? If it's political, the winners of the elections should prevail. If you want to say it's not political, then why did you portray it as political, throughout the hearings and as part of a strategy devised years ago at your retreat?