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Sunday, January 15, 2006
Alito, Parties and the Judiciary
By Dr. Steven Taylor @ 9:05 am

Via the NYT comes a piece (Glum Democrats Can’t See Halting Bush on Courts) which describes the Democrats’ frustration with Alito in specific and the Republican influence over the judiciary in general.

A few things strikes me from the piece. The first is about Alito and the surprise by the Democrats over their inability to defeat the nomination:

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.

First off, barring a filibuster, the ability of the Democrats to defeat a nominee under the current conditions is hardly surprising: there is a Republican President and a Republican Senate. Barring something that would create a rift amongst Republicans in the Senate, one should expect that the nominee would succeed.

In all fairness, Senator Schumer understands this:

“You either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it’s a conservative nominee,” Mr. Schumer said. “We don’t have any of those three. The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it’s harder than it was last term.”

Ditto, Representative Rahm Emanuel:

“George Bush won the election,” said Representative Rahm Emanuel, an Illinois Democrat. “If you don’t like it, you better win elections.”

Indeed, one would think it would behoove the Democrats to use the judiciary as a campaign issue going forward, something the Republicans have effectively done in recent years.

Second, there is a self-contradictory argument being made by the Democrats interviewed in the piece. They state that it is blatantly obvious that Alito was too conservative and out of the mainstream, but that they were unable to make it clear that he is too conservative and out of the mainstream. That is to say, it seemed as if the Democratic leadership thought it obvious that Alito was “out of the mainstream” but then thought that the reason that they failed to stop Alito was that they didn’t do a good job of sharing the obvious with the public.

“You’re trying to convince the American people that this man is not on your side,” said Dale Bumpers, a former Democratic senator from Arkansas. “Obviously, we didn’t do a very good job. Or I’d put it this way: Alito and Roberts did a good enough job that the Democrats couldn’t make that case.”

This reminds me of the 2002 mid-terms (and, to some degree 2004) where many Democrats thought that had they gotten their message out, they would have won, without considering that perhaps their message needed review and revision.

Indeed, the following quote underscore the notion that the failure to defeat Alito in the committee was a question of presentation:

“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.”

To think that the tears were the key is simply self-delusion.

Perhaps Alito isn’t as far out of the mainstream as Schumer likes to say. And if he is, Schumer and company may only have themselves to blame that no one took their warnings seriously, because, on balance, it has been Senator Schumer’s habit to declare all of Bush’s high profile nominees to be “out of the mainstream”-there is a sense of “crying mainstream” here, if anything.

Part of the anti-Alito argument has been that he is far, far, far too conservative and that such a fact ought to be obvious. However, again, the best the Democrats seem to be able to muster was the degree to which Alito should have been linked to CAP and whether or not he acted properly vis-a-vis the Vanguard Group.

Those are hardly proof of much of anything.

In regards to abortion, the problem for the Democrats was 1) we expect evasive answers on those questions, and 2) the idea that a Republican nominee might indeed be pro-life is hardly a shocker. Further, Alito’s record is hardly one of a crusade against abortion, and the testimony from his peers indicated that such a crusade was unlikely to start should Alito be placed upon the Court.

Indeed, the main pro-abortion groups are in such a habit of declaring every Republican nominee to be the vote that overturn Roe, that I don’t think most people really pay attention to their pronouncements. Even David Souter was painted as such. Again, we have some “crying wolf” going on here.

More later.


  1. The crying wolf comments are right, I think.

    If you oppose 1 nominee in 100, you get attention. 1 in 10, less so. But if you use the same objections to every nominee, you start to lose people’s attention.

    Comment by Steven L. — Sunday, January 15, 2006 @ 9:32 am

  2. I’m ready to advocate the formation of a new party for liberals and progressives and moderates, because elected Democrats and their allied special interest groups don’t seem to have a clue about how to either win elections or function as the minority party. Alito is going to be nominated. The Republicans have the majority, they have the nomination process. Trying to paint every Bush nominee with the same brush plays into the hands of those who say the Democrats are only about opposing Bush.

    Comment by Harry — Sunday, January 15, 2006 @ 9:41 am

  3. I think that what Senate Democrats succeeded in was first boring the pants off anyone so unfortunate as to be listening and second call their own bona fides on being in the mainstream into question.

    Comment by Dave Schuler — Sunday, January 15, 2006 @ 12:23 pm

  4. […] nations
    By Dr. Steven Taylor @ 3:06 pm

    From the same article as referenced in my previous post there is a discussion (and a graphic) about the fact that a majority of current federal judge […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » More on the Politics of Judicial Nominations — Sunday, January 15, 2006 @ 3:10 pm

  5. […] ents on theNYT piecethat has worked out to be a big focus here at PoliBlog today (here and here). She makes several of the same points as did I: the solution for the Democrats is winning elections, a […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Althouse and the “Glum Democrats” — Sunday, January 15, 2006 @ 3:58 pm

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