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Alito in the ring

By Diogenes (articles ) | Nov 01, 2005

Sanguine (too sanguine?) predictions from David Frum:

1) Dems don't have the votes to stop [Alito]. To make an effective fight, they'll have to filibuster. But it's a little hard to describe circumstances as "extraordinary" -- or to condemn a nominee as somehow extreme or bizarre - when you yourselves voted unanimously to confirm him to the nation's second-highest courts.

2) Nor will a campaign of character-assassination like that practiced against Clarence Thomas be practical here. Not only is Alito's record clean, but there are a lot of Italian-American voters in up-for-grabs Pennsylvania who will resent it.

3) Besides which, in event of filibuster, personable, brilliant Judge Alito is exactly the kind of candidate who will embolden Republican moderates to join the rest of the party to vote for the constitutional option, a filibuster-override.

4) I think polls will soon tell us that this nomination is popular. For Dems, every day spent fighting on the losing side of this battle is a day they are not slamming the president on gas prices, Lewis Libby, and other genuine political vulnerabilities. They will soon figure out that this battle is the least politically lucrative one available to them - and decide that their interests are best served by bringing it to a quick end with a vote to confirm.

5) Democratic hopes for regaining the Senate are tied to defeating Sen. Rick Santorum in Pennyslvania. Do they really want to create opportunities for Santorum to remind Pennsylvania's socially conservative voters that a vote for Robert Casey Jr. is in fact a vote against parental notification and in favor of partial-birth abortion?

Maybe. Maybe not. One thing Frum doesn't acknowledge is that every potential candidate for the Democratic presidential nomination will have to declare against Alito -- unlike the case with the Roberts nomination, where Hillary Clinton kept a low-profile until the actual Senate vote. Alito hasn't provided the Dems any wiggle-room on abortion.

Win or lose, it's time the fight took place. Justice Scalia marked out the ring very neatly in his review of Steven Smith's book in the current First Things:

We have a practice of relying upon judicial precedent (so-called stare decisis), which is no less extensive post-Holmes than pre-Holmes. That made sense in a legal system that regarded judicial opinions as "evidence" of what "the law" is. It makes no sense in a legal system that regards the judicial opinion itself as "the law," any more than it would make sense to bind today's legislature to the laws adopted in the past.

That's clear enough, isn't it? Let Arlen "Super-Duper Precedent" Specter and Alito put on the gloves, and let the games begin.

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  • Posted by: benedictusoblatus - Nov. 02, 2005 12:20 AM ET USA

    Dred Scott!!! Stare decisus be damned! The US Supreme Court declared in 1857 that Blacks have "no rights which any white man was bound to respect." They were undeniably wrong then, just as they were wrong in 1973 when they effectively made it open season on the unborn with their decision Roe v. Wade. The only irrevocable "stare decisus" I know of is that of the Final Judgment - both the particular one at the end of each person's life and the general one at the end of time.

  • Posted by: Fr. William - Nov. 01, 2005 5:02 PM ET USA

    Amen, Diogenes and Salve Regina. Lots of prayers for Judge Alito's confirmation to the SCOTUS.

  • Posted by: - Nov. 01, 2005 1:45 PM ET USA

    Heavenly King, may judge Alito's appoitment to the supreme court happen quickly and may abortion be made illegal by him and the remainder of Supreme Court Justices who stand to defend the helpless unborn. We will be judged as a nation by how we care for the most vulnerable of our citizens.

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