Alito Too Late

I'm suffering from a mixture of bar exhaustion, ennui, and liberal outrage fatigue, such that I can scarcely rouse my activist angst (and I usually have rage issues). I've started this blog a little too late, well after some of my favorite issues--the horrible Bankruptcy reform bill, the Gonzales v. Raich decision--but I'm in time for the FISA wiretap issue (though that has been discussed much better by the real academics and experts out there) and the Medicare reform bill (bad, BAD idea, and I know because I was on Medicare when I was a kid). But today I write of Judge Alito. I'm not as mad as I would be if this was the wackjob Janice Rogers Brown or Edith Clement, but I'm not happy. (If there was a conservative to be nominated, it should have been Michael McConnell, who's at least principled)

I'm opposed to Alito's nomination on a number of grounds, chief of which is frightening stance on executive power. I don't know where the idea of a "unitary executive" comes from, but it doesn't come from a love of separation of powers and civil liberties. I'm against him for his decisions on employment discrimination, criminal procedure, the Commerce Clause (Congress can't regulate machine guns?!) and of course, abortion rights. But I think the Left is shooting itself in the foot using that as a single-issue platform. There are a lot of issues that trouble me as much as, or even more than choice, which has already been all but whittled down to a formality in the Bible Belt. I'm not saying get out of a losing war--I'm saying we should evaluate where we put our energies and how we draft our core messages.

Choice is important to me, and I suspect it is for many women who think "well here's a legal issue that directly affects me." But I can think of a hundred other laws that impact our daily lives: welfare reform, bankruptcy laws, the constitutionality of unreasonable strip searches, warrant-less wire taps, and federalism. Yes, federalism--whether Congress has the power to regulate civil remedies for gender-motivated violence, guns in school zones, personal marijuana use, environmental laws, hate crimes...the list goes on. It shouldn't be all about choice, even though choice is important.

So with the plethora of issues on which to oppose Alito, I'm not sure how I feel about the Senator's attempts to block his vote via fillibuster. For one thing, they didn't sufficiently muster up the opposition early on, so this just seems like sideshow attention-getting antics right now. There was no way that a fillibuster would go through, and Kennedy and Kerry knew it (it went down today 75-25. Too little, too late. So why try to fillibuster when you know it's not going to work? Why entice the Republicans with the possibility of using the nuclear option? I'm not arguing that if they had, the Republicans would have said "that's it! I'm not going to be nice to you the next time you're in power!" I don't think either side has those kind of bona fides or honorableness. I'm saying they're jeopardizing the hard-wrought Gang of 14 compromise, and if they had gone through, the Republicans might have made good on their promise to use the nuclear option and re-write the Senate rules to block fillibusters--not a good thing for democracy at all. I think that every Democratic Senator should vote his/her conscience and against Alito's nomination. Doing so won't block him from being on the court, but it would send a message that "we think he is beyond the legal mainstream."

It's a Pyrrhic, symbolic victory (loss), but it's a message worth sending. The political realist in me says that you pick your battles and your tactics carefully, but if you must lose, and you know you will when the other side has more votes than you and the candidate, while offensive, is nevertheless well-qualified and appears temperate, then lose while being strong in your message. Say that "despite his qualifications and good character, we believe that Judge Alito's positions on X, Y and Z are outside the legal mainstream, and we cannot support his nomination."

That's what I would say.