January 23, 2006

Where are the real political opportunities and risks in the Alito vote?

The NYT has an editorial today headed "Judge Alito's Radical Views." The Times outlines the position -- relied on by the Democrats at the hearings -- that Alito takes an extreme view on various constitutional questions. It repeats their mantra: Alito "has a history of tilting the scales of justice against the little guy."
The White House has tried to create an air of inevitability around this nomination. But there is no reason to believe that Judge Alito is any more popular than the president who nominated him. Outside a small but vocal group of hard-core conservatives, America has greeted the nomination with a shrug - and counted on its senators to make the right decision.
The point of this paragraph is to refute the strongest argument for voting for Alito: The Constitution gives the President the appointment power. That means something. Elections mean something. If you believe constitutional law at the Supreme Court level is somewhat, mostly, or completely political, it means even more, because someone must choose from among all those qualified jurists. Why would it not be the President?

Here, the NYT's assertion is that the President isn't that popular. Though he was re-elected a little over a year ago, support for him is rather low. (Too bad it's not lower, or this would be a better argument!) Under this view, a President's leeway to pick the Justice he wants waxes and wanes with the polls. He ought to moderate his selection according to the level of political support he currently enjoys, or perhaps according to the level of political support on the issues likely to come before the Supreme Court in the coming years. His failure to accurately channel political preference ought to activate Senators to push back more forcefully than they would have if the President had not himself made a strong move. That's the theory, it seems.

That's not a bad theory. But "America has greeted the nomination with a shrug." The hearings were designed to reveal the supposedly extreme views of the nominee. It was at this point that the people should have begun expressing outrage and demanding that the Senators stop the nominee. The Democrats on the Judiciary Committee did their best to stir up outrage. But where is it? They tried as hard as they could to alarm people about the issues that tend to create the most political heat. Abortion! Silence. The NYT is left saying only that the President isn't popular enough and that the people must be counting on Senators to figure things out for them and to do what they would have wanted if they'd bothered to attend to their own interests.

The Times concludes by reminding the Senators of their interests:
The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.
Why? What exactly is the political dynamic for Democrats? If the shrugging Americans are suddenly awoken by a Court making extreme and unpopular decisions, will they blame the Democrats for not stopping him? If people don't like it, they should blame the President, who chose him. Then, the Supreme Court will become an important issue in the next presidential election, as it was not in 2004. The Democrats will be in a good position to argue that a Democratic President is needed to moderate the Court.

And what if the new Court does not make the extreme and unpopular decisions that the NYT predicts? What if the transition away from Justice O'Connor's style of decisionmaking goes well, and, under the leadership of Chief Justice Roberts, the Supreme Court wins new admirers and inspires greater confidence? What if Samuel Alito performs well? How will a Democratic Senator who railed against him look in a presidential debate saying you need to trust me to pick the next round of nominees?

Where are the real political opportunities and risks in the Alito vote?

11 comments:

Brent said...

The New York Times, if it was completely honest, would just print a one time editorial: We Won't Support Anyone at Anytime That Could Possibly be Considered Pro-life". After paying for TimeSelect, I spent 4 weekends looking up the Times election / appointment endorsements for the last 12 years. Total of actual pro-life candidates or appointees endorsed by the Times?: a grand total of 3, and 1 of those eventually turned out to be more pro-choice on the court than thought.

C'mon, Pinch, write the editorial and save us all time!

Then they can explain why they have not endorsed one Republican for President for over 70 years.

And liberals complain about Fox being disingenuous. . .

Murph said...

As our political culture grows coarser the nexus is on fund raising for the next campaign and nothing else. Alito’s confirmation hearings are the final proving grounds for the ultimate in political home runs – a nice partisan brawl with red meat for both sides and the inevitability of the outcome.

During the Bork hearings the democrats successfully demonized the nominee because he was somewhat eccentric and the MSM (particularly the NY Times) successfully led the propaganda war. Today the White House is smarter about the look and polish of its nominees -- the Bork look is definitely out.

And, with the ‘Gang of Fourteen’ both sides can tell their supporters that while they oppose the nominee there is absolutely nothing they can do to stop his or her elevation to the high court.

What we have now is perfect political theater. Both sides get exactly what they want – publicity, a chance to appease the loyalist and the mother of all brass rings – fund raising. Democrats, at least those with an ounce of wit, know Alito is eminently qualified for the job. Nevertheless, in recent years democratic fund raising has become increasingly difficult. What Kennedy, Biden and the others are doing is energizing their core donors so they can squeeze a few bucks out of them.

Having lost the House, Senate and now the Presidency democratic money has slowed to a crawl. In the democratic view Sam Alito’s greatest qualification for the bench is his fund raising ability – this entire process has been about money and nothing else – the lions of the left care a lot more for their political survival than they do about war, civil rights or even abortion.

Like Deep Throat told Woodward and Bernstein – follow the money.

Murph

Charles said...

After all the hysteria and the embarrassing "hearings," I just am not getting the feeling Alito is some far right winger. He might be right of center.

Why do Democrats (in general, or at least their spokesmen) and the left-socialists, seem to think the SCOTUS is mandatorily divided into 3 right, 3 left, and 3 swing voters? Did I miss an amendment or a paragraph somewhere?

Merv said...

If the NY Tiems followed its own logic then President Clinton who was elected with only 43 percent of the vote should have had his Supreme Court nominees rejected.

What we see from the Ny Times editorial board is not argument but rationalization for their weak position.

Richard Dolan said...

"Where are the real political opportunities and risks in the Alito vote?" In terms of larger trends between Rep and Dem, I'd answer, very few and far between. In terms of individual candidates for office (especially the presidential nomination in '08), it will be one factor among many that will influence how each side's base views the potential candidate. In terms of possible impact on senators seeking re-election this year, the impact seems to be close to zero. Other than Senator Nelson of Nebraska, senators up for re-election in a state carried by the presidential candidate of the other party don't seem to be bucking the partisan imperatives here -- all the Rep's will vote for, and it seems that all the potentially vulnerable Dems other than Nelson will vote no. There's no better weather vane on political impact than a politician up for re-election in those circumstances.

All of this strikes me as a rational response to the political realities. Those who followed the Alito hearings closely are coextensive with the well informed and also largely committed base voters on the left and right. No doubt, there are a few (perhaps like you, Ann) who are very interested in the SCOTUS nominations while falling outside the two contending bases, but that class of voters is small indeed.

The issues that animate those intensely focused on SCOTUS nominations -- NSA and warrants, presidential vs. congressional powers, standards of proof in civil rights cases, class action litigation, you name it -- have no real resonance for most of the electorate. Even the biggest SCOTUS-focused issues -- such as abortion -- don't have the impact at the ballot box that they may once have had. For example, polling in '04 suggested that the abortion issue -- as it is currently framed, with all of the debate at the margins such as partial birth and parental notification -- was a net plus for Bush and the Rep side generally.

Perhaps if Roe were overruled and Alito's was the deciding vote, there would be real political fall out from a vote for or against him. Even then, in most states there would be no practical impact since the basic policy of Roe (if not the farther reachs to which purists try to push it) reflects the majority position of the electorate. But short of that, it's mostly just the base voters on each side who really care about this stuff and will focus on it when the next election rolls around. It would take a lot more than a SCOTUS nomimation to get those base voters to switch sides. I don't give much credence to the agenda-driven stuff about the Christian right's willingness to abandon the Reps over this -- just sounds like the sort of thing a political operative would say to influence the decisionmakers, more than any likely real-world impact from a pro or con vote on a nominee. I haven't seen any convincing data about possible impacts on participation rates, but even there I doubt that eithcr side's base would be so unhappy with anything Alito may do as to sit out an election in any significant numbers because of any senator's vote for or against Alito.

BTW, after summarizing the position taken in today's NYT's editorial, you comment "That's the theory, it seems. That's not a bad theory." Unless the "theory" here is just a way of discussing political muscle, the notion that "a President's leeway to pick the Justice he wants waxes and wanes with the polls" seems nuts to me. Nothing in the appointments clause gets you there. At most, it's just a truism that a lame duck president down in the polls has less political clout, and thus less of an ability to win a political fight. I'm not sure what you see as "not a bad theory" in a predictably lame NYT editorial.

akashawn said...

To the victors go the spoils. When and if a Democratic President wins, I expect him to appoint liberal judges and (given a Democratic Senate) push through their confirmations.

The Democrats need to make sure people know who to blame if Alito casts the fifth vote to overrule ROE.

Thats the best they can do.

John in Nashville said...

Elections do indeed matter. That is why a Republican nominee needs at least five members of the Supreme Court who, when need be, are fully willing to act as wardheelers rather than jurists.

As Stalin observed, who cast the ballots matters far less than who counts the ballots.

nunzio said...

I suppose if Senators think Alito has strong views of Presidential powers, then they might have an institutional self-interest in rejecting Alito.

I think both sides also could strike compromises by having an unwritten rule that any SC nominee be at least 65 years old.

Mike said...

I don't read the Times much anymore, but I stumbled onto this editorial. I was struck by the over-the-top phrases: radical (4 times), extreme, fringe, outlandish, hard-core, far right. I thought I was reading a political fundraising letter (which, I suppose, I was). Is this typical of the Times nowadays?

Jon G said...

Yes, Bush was elected, which is why he gets to nominate. If the framers had wanted the elected President to appoint rather than nominate judges, they could have said so.

And there is more on the table than Roe. Scalia wants to throw out Griswold, the EPA, FEC, etc.

As for Bork, his recent writings make most sensible Americans grateful for his borking.

"What if Samuel Alito performs well?": Alito is dangerous, like biking without a helmet. Let's not take the unnecessary risk.

Sloanasaurus said...

"...To the victors go the spoils. When and if a Democratic President wins, I expect him to appoint liberal judges and (given a Democratic Senate) push through their confirmations...."

This is no longer the case. Democrats changed the formula for nominations to the Supreme Court. Democrats were only thwarted in their efforts because they did not have a majority in the Senate. If a Democrat is elected President, I ewould hope Republicans will oppose all the President's nominees. If Republicans hold a majority in the Senate they should vote down any Judge who is not a centrist.

It won't happen though. Republicans will end up voting for qualified nominees (Ginsburg redux) mostly because Republican Senators are not as beholden to special interests. Republicans are just more diverse and get their money from more diverse places than Democrats.