Monday, October 31, 2005
Boy, the President looked peeved announcing Alito's nomination. The way he paused and pursed his mouth when referring to his sterling (and they are sterling) credentials.
Hugh Hewitt thinks what is needed now is massive phone-banking to the GOP members of the Gang of 14 to get them to commit to the "Constitutional option" as it were (eliminating the filibuster for judicial nominees). He's jumping the gun, I think, at least if he's looking for public statements from these Senators that they will vote for said option. As well, we don't know yet whether Specter, Snowe, Collins or Chafee will vote for the nominee, nor whether "red-state" Democrats will be able to maintain party discipline. Escalating preemptively to the "constitutional option" makes it *easier* for Democrats to maintain that discipline, because they have better ground to stand on than they do if they have to stand on abortion alone. And it goes without saying that politically it's better to win with 60 votes than with 51.
Even if the point of this nomination is to have a big, public fight, I think it makes sense to draw enemy fire first, because the overwhelming arguments from the Democratic side are going to be about Casey. And I think it helps the GOP to have the Democrats say, "every member of this party must vote against nominees to the Court who think Casey was wrongly decided." Among other things, it would make for very interesting ads in the Pennsylvania Senate race.
Finally: three groups from within the Right who have reason to be disappointed with Alito. First: business groups. He offers them nothing. Miers was their gal. They are going to expect the next nominee, if there is one, to be "their" pick. The social right needs to mend some fences here. Second: evangelical Christians. It's an unfortunate fact but there are certainly people who supported Miers who think her opponents on the *Right* were casting aspersions on her religion. And Alito is another Catholic. I don't think identity politics should have anything to do with the Court, but I'm not the only person out there. Finally: advocates of a more "Talmudic" as against "Papal" model for the Supreme Court's role. Scalia's Catholicism extends beyond his religious affiliation; he is a strong proponent of the notion that the Supreme Court is the final word on the interpretation of the Constitution (as against those who, in the spirit of Larry Kramer's book The People Themselves, take the view that the Court is the final word on any one case but that every branch of government and, indeed, the American people themselves, have equal right and obligation to interpret the Constitution - honestly, of course, but independently). Alito appears to be cut from the same cloth in this regard. Those who are not happy when, for example, the Court rebukes Congress for independently interpreting the Equal Protection or Free Exercise clauses of the 14th and 1st Amendments respectively should not be thrilled by the increasing Catholicism (in this sense, not the religious) of the Court.
I have no business making predictions how this nomination will go, particularly since I have egg on my face from my very recent prediction that the nominee would not be someone like Alito, and, specifically, would not be Alito himself. But that won't stop me. Even though I argued, before the fact, that Bush was in too weak a position to have a knock-down drag-out fight over a nomination, and therefore would pick someone eminently confirmable, I think Alito will join the Court, and that he will do so without triggering the "Constitutional option." But maybe that's just wishful thinking on my part.
We'll see soon enough, won't we.