The Samuel Alito hearings demonstrate the price of one-party government. A Supreme Court nominee who is by expressed conviction opposed to Roe v. Wade and dodgy about privacy rights, whose radical jurisprudence undercuts Congressional authority and guts civil rights enforcement–a philosophy not long ago viewed as unconfirmable–now appears to be hurtling toward confirmation amid cheers from the right and resigned shrugs from too many Democrats.
Confirmation hearings are supposed to inform the Senate and the public about a nominee–to put some meat on the bare bones of the Constitution’s advise-and-consent clause. Alito’s hearings did the opposite, obscuring his fifteen-year paper trail as a judge and his careerlong commitments. The Democratic failure to make Alito’s far-right biography stick may invite Monday-morning quarterbacking, but it is also clear that no matter what Alito said, he would have retained the support of most of the Judiciary Committee Republicans–including, unfortunately, Arlen Specter, who traded in his record as a prochoice moderate to preserve his prerogatives as Judiciary chairman.
The real Democratic failure is long-term. For years Democratic leaders have avoided the work of strengthening a constituency for civil rights and civil liberties, keeping such issues at the periphery of their political strategy. In that sense, Alito’s expected confirmation is payback. It’s fine to say that a more balanced Supreme Court is impossible without Democratic victories in 2006 and ’08, but such victories will gain little if they are not accompanied by a renewed Democratic commitment to privacy, equality and civil liberties as core values–and by Democratic politicians’ determination to tell a persuasive story about why people should care.
There are still reasons to slow this nomination down and fight Alito as hard as possible. For one thing, Democrats have never gained by folding their cards on a judicial nominee; the tactical decision by some to vote for John Roberts, thinking that would lend credibility to opposing an even more conservative nominee like Alito, earned them chump change rather than political capital. (Roberts’s vote against Oregon’s Death With Dignity Act should end the fiction that he is a social pragmatist in the O’Connor mold. If Alito is confirmed, there will be a solid four-vote bloc of social conservatives.) Even more compelling–enough to warrant a filibuster–is the gathering constitutional crisis over presidential power and accountability. Given Alito’s long devotion to expansive executive-branch power, his post-9/11 endorsement of the unitary-executive theory and his cagey responses to senators’ questions about presidential lawbreaking in wartime, his nomination deepens that constitutional crisis–an extreme circumstance without historical parallel.