Action Alert!

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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