January 13, 2006

"If they want to filibuster, frankly, bring it on."

Says Senator Orrin Hatch, reported in the Washington Post. Senator Ted Kennedy is saying "We've still got a ways to go to figure what the strategy is going to be." But the Democrats know they've lost the fight to stop Alito:
When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure.
So they tried to set up opportunities for gaffes and goad him into losing his composure. They succeeded in making his wife cry, which which only hurt their cause by making them look mean-spirited and callous and by overshadowing the message they hoped would capture the news reports.
When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides agreed he had done neither.
In fact, by the end of the first day of questioning (that is, the second day), the outcome seemed clear. Most Americans, I think, if they were tuned in at all, saw how things were going and tuned out. To stimulate their outrage and make defeating Alito a possibility, something very unusual would have had to break out of the tedium of the Senate and get people thinking that the nomination was still in play. But we watch politics selectively, and we're good at seeing which things are rolling toward predictable outcomes and which things deserve our attention.

I will be interested to see which Democratic Senators decide to vote against him. I'll invoke my favorite Hillary Clinton quote (spoken about the vote on John Roberts): "They will do what they think is in their interest, however they define it."

Will any of the 22 Senators who voted against Roberts turn around and vote for Alito? It's hard to see why. But will any of the 22 Democratic Senators who voted for Roberts see reason to vote against Alito? Perhaps they will.

In that group are my two Senators Russ Feingold and Herb Kohl. I am especially interested to see how Feingold will vote, because I assume he is running for President. Hillary Clinton has already voted against Roberts, so I expect her to vote against Alito. Feingold has already distinguished himself from her, and I'm sure if he wants, he can give excellent reasons for distinguishing Roberts from Alito, and a combination of yes and no votes might serve him well, making him seem to be evaluating the judges in a fair, nonideological manner. He could draw attention to the concerns about expansive executive power, which have grown in the time since the Roberts vote. The changed circumstances alone could justify a different vote on the two men.

Nevertheless, I think Alito deserves a yes vote. To vote no based on his performance at the hearings is to set the expectations too high for the next nominee. We need to worry that good people will decline to be nominated. And Democrats will some day have the power of appointment again. Their treatment of Alito will serve as an example to Republicans as to how far they can go in attacking that new nominee.


herman j blume said...

If the dems filibuster or resort to other desperate tactics now, they are setting theselves up for the same treatment down the road from the right. They'd be better off using SCOTUS more heavily in the next pres campaign.

reader_iam said...

Yeah, I'm interested which way Feingold will go, as well.

In general, he bears watching.

American Patriot said...

I tried to be a good citizen and watch it, but could only manage short burts until my head started to hurt. Yesterday I watched Schumer try to get Alito to say that the commerce clause has 'evolved' because Congress needs to watch out for the little guy, then the Republican mouthpiece after him spent wasted minutes praising his family and playing good cop to the Democrat's bad. Needless to say, I ran out of Advil.
I can't help but admire anyone with the self-restraint necessarily to last through the nomination process, and be able to sit across from Ted Kennedy and answer his questions with a straight face. I only hope Alito is as much a fan of the Constitution as his defenders claim. Evolution of commerce clause my tookus...

PD Shaw said...

If liberal activitists were resting their hopes on Alito committing a gaffe or losing his composure, then they must be sorely dissapointed with members on the committee who spent so much time talking and instead of forcing Alito to talk.

Kirk Parker said...

"Democrats will some day have the power of appointment again."

Not necessarily; political parties do occasionally go out of business. If the national Democrats don't tack back toward the middle, by disowning the Deans and the Moores(*) among other things, eventually there will come a time when the Republicans can splinter into a moderate group and a more-libertarian or more-conservative or more-religious-right group without totally losing power.

All that it needs is a critical mass of people to think it's a viable move...

* For you partisans out there: I mean disowning in the same sense as the R's disowned David Duke and Patrick Buchanan. It was just a few presidential terms ago that Buchanan was speaking at the RNC; now he's out of the party (voluntarily, though there was a lot of helpful pushing) and no R welcomes his endorsement at all.

MadisonMan said...

Memo to Senator Hatch: Do not remind voters of Iraq and the President inviting an insurgency.

I guess Feingold has to decide if he can reconcile a vote for Alito, who presumably supports an very strong Presidency -- and all the secret wiretapping that seems to entail, with a vote against the Patriot Act, which vote was predicated on watching out for the rights of Joe Sixpack in Tomah.

A yes note will turn off a lot of far-left Democrats, but not me.

Adam said...

Why would Alito have to commit a "gaffe" during the hearings to merit a "nay"? Surely, one could choose to vote against him based on his legal career and consideration of his testimony this week, which reveal him to be overly deferential to government (esp. law enforcement) and insufficiently protective of individuals against their employers.

Ann Althouse said...

Adam: "Why would Alito have to commit a "gaffe" during the hearings to merit a "nay"?"

But that's not really the question. The question is what would it take to build up the kind of momentum to get him defeated. Even before the hearings, those who wanted to vote no had the material they needed to explain their votes. But the politicians do not want to vote no in sufficient numbers until the general public has gotten heated up. That's what required a gaffe.

Goesh said...

- and then there was Judge Barry and some of her pals coming off the Fed. bench to sing Sam's praises for the Senators, sort of putting a seal on the composure and steadfastness displayed by Judge Alito.

Mark said...

"So they tried to set up opportunities for gaffes and goad him into losing his composure. They succeeded in making his wife cry, which which only hurt their cause by making them look mean-spirited and callous and by overshadowing the message they hoped would capture the news reports."

That's neither accurate nor fair. As the previous post acknowledged, it was Senator Graham who made Alito's wife cry. Most of Democrats' questioning (especially by Feingold, Schumer, and Durbin) has been nothing but courteous.
The right-wing spin (not by Ann, but by Drudge, Hannity, etc) that it was Democrats who reduced the poor woman to tears is false. But Ann is wrong to say that Democrats "succeeded in making his wife cry." That said, I think this whole process of the wife sitting behind a nominee supposedly looking supportive is completely meaningless.

PatCA said...

Well, I suppose the Dems could hope to goad him into standing up and shouting "I hate black people" but other than that, what could possibly cause this well qualified, ABA approved, jurist's defeat?

They're just getting their licks in to excite some fundraising. I'm sure the 22 will vote no as well for the same reason.

Adam said...

Or, as I've written elsewhere, Democrats need to get back into their time machines to the early-mid 1990s, when conservatives really got starte with complaints about "activist judges" and calls for "judges who won't legislate from the bench", and respond with something, instead of leaving the frame to be defined by conservatives.

Democrats needed to -- and still need to call for judges who are committed to increase -- not merely decrease or maintain, but increase -- the protections of human dignity and liberty. Or for judges who believe, as Justice Brennan did, that "Law cannot stand aside from the social changes around it."

Democrats lost this debate a long time ago because they failed to fight it.

Gerry said...

"making him seem to be evaluating the judges in a fair, nonideological manner"

Seem being the key word in this phrase, at least to my eyes.

akashawn said...

elections mean something . The American people elected a President who wanted to get Roe vs Wade overturned,and to wipe out affirmation action by appointing judges of a like mind. Well he has made a whole lot of progress toward those goals by appointing a couple of " Scalia lite" type judges. The only thing the Democrats can do now is to make damned sure that Americans understand whats going to happen, and they in effect voted for it to happen. I say they should say, loudly & repeatedly, that they expect Alito to vote to curtail, in if abolish abortion rights & affirmative action and that they exp[ect Judge Alito to defer to the-government on everything. The they should vote,

brylin said...

From my vantage point, I would fall off my chair if Feingold or Kohl voted "yes" on Alito.

Adam said...

Akashawn, if you can find a speech in which President Bush explicitly said he wanted to see Roe overturned, I'd be interested in seeing it. I don't believe he has.

brylin said...

On the possibility of a filibuster, NY Times reporter Adam Nagourney reports:

"The chances of a Democratic filibuster faded after the third day of hearings, as a spokeswoman for Senator Olympia J. Snowe of Maine, a moderate Republican, announced that Ms. Snowe would oppose it. Her decision is pivotal because she was one of seven Republicans who had joined an earlier successful effort to block Republican leaders from changing Senate rules to prevent filibusters against judicial nominations."

Greg D said...

So they tried to set up opportunities for gaffes and goad him into losing his composure.

No, they didn't, they decided to waste their time getting personal exposure, instead of spending their time asking questions and making Alito talk.

You can't make a gaffe when you're not talking. the Senators did most of the talking.

You have set the Dems an impossible task, which is why they're consistently losing.

"Democrats needed to -- and still need to call for judges who are committed to increase -- not merely decrease or maintain, but increase -- the protections of human dignity and liberty."

Translation: Dems need to call for "judges" who will spit on Democracy, trample the rule of law, and impose my desires on the American People, regardless of what the American People want.

If the People want something done, they can vote for it in a referendum, and / or they can vote for legislators and executives who will give them what they want. They neither need, nor want, "judges" to force the "judges" personal desires on them. The Democrats have given up on trying to win elections, getting their program ratified by the voters, and have settled for using oath-breaking "judges" to force the Democrat Agenda on the American people. This assault on Democracy has the effect of pissing off the voters, regardless of whether or not the like some of the items forced on them. Thus the Republicans win more elections.

It will keep on happening until you Democrats come to accept democracy, and the rule of law, and stop trying to get your agenda through "judicial" action instead of legislative action. You do not have the "right" to win. Accept it.

Adam said...

Greg D, if this system of government was all about the majority getting its way, we wouldn't need a bill of rights.

Greg D said...


If members of the Supreme Court were entitled to rewrite the Constitution whenever their hearts desired, we wouldn't need the long and cumbersome Amendment process.

It Democracy (BTW, where the heck do you think te Bill of Rights came from?Judges?) plus the rule of law.

Which means written law, followed to the letter, by everyone. Including judges, and members of the Supreme Court.

The mere fact that a law doesn't meet your ideas of social justice does not make it Unconstitutional. You don't like a law? Great. Put together a campaign to get teh law repealed. Write your legislators. Pass out petitions. Encourage people to vote against legislators.

And if you lose? tough. You're nto God, your not teh supreme ruler of the US, and you're not infailable. the People have the soverign right to disagree with you, and so long as they aren't violatign te written law, they have the right to get their way, and nt to have yoru way forced on them.

It's called the rule of law. It's called Democracy. It's called repecting te voters.

And Democrats unwillingness to do it is the reason why you're going to continue to get your butts kicked. Because the American people don't like being told they don't matter.