Democrats in the Senate missed a crucial opportunity over the disastrous four weeks of the Harriet Miers nomination. While her withdrawal in late October represents a failure of the increasingly embattled Bush political machine, it sets the stage for Republicans to reunite their base behind the illusion that the Right cares about credentials, while the Left opposes qualified nominees based on social and cultural litmus tests. Feckless as ever, the Democrats let their chance to dispel that destructive illusion slip away. And with Bush’s nomination of Judge Samuel Alito, they, and we, are going to pay for it.
Bush’s pick of Miers, his personal attorney and bosom buddy, to replace Sandra Day O’Connor on the Supreme Court seemed doomed from the beginning. Right-wing bloggers attacked the President with the type of vitriol they usually reserve for Michael Moore. All were quick to point out she had never served as a judge. The Wall Street Journal decried the choice as “cronyism,” Rich Lowry of the National Review called Miers “an affirmative action selection,” and the ever tactful Ann Coulter listed her qualifications, blending them with the resume of Bush’s dog Barney: “Loyalty, courage, never jumps on the furniture.” It seemed the unified front conservatives had been building since the 1970s was finally starting to fracture.
Harriet Miers may indeed have been unqualified to sit on the highest court in the land — her inability to answer a simple questionnaire on constitutional issues did not inspire confidence — but the mere fact that she had never served as a judge should not have foreclosed her candidacy. The justice most responsible for the court’s conservative turn, William Rehnquist, was appointed directly from his post as Deputy Attorney General, with no judicial record to speak of. Conservatives who demand strict interpretation of the constitution might question why, if the framers intended only judges to sit on the Supreme Court, did they not specify such a requirement?
Further, the record of “stealth” candidate John G. Roberts Jr. was equally opaque regarding his stance on major culture war issues. The difference was Roberts’ ability to impress senators with his sharp legal mind and his broad knowledge of constitutional law. There was never a question as to his qualifications. Republicans, expecting the Roberts nomination to be followed by the selection of a radical conservative, accused Democrats trying to delve into Roberts’ actual judicial philosophy of being obstructionist.
While the Right couched its attacks in questions about Miers’ credentials, the outpouring of anger from conservatives in fact stemmed from their uncertainty about where she stood on crucial social issues like abortion. Without a paper trail to verify her conservative pedigree, Miers represented a betrayal of Bush’s conservative base, who felt another Scalia/Thomas was their due for delivering the White House. The last straw was the release of a 1993 speech Miers had given to a Dallas women’s group in which she praised the democratic principle of self-determination. Hardly a controversial position, but cultural conservatives read it as an indication that a Justice Miers could not be trusted to overturn Roe v. Wade, the central aim of the radical Christian movement that now controls the bulk of our government, save the courts. It was a mere days after this revelation surfaced that Miers withdrew her nomination.
During all this mudslinging the Democrats licked their chops at the prospect of the Republican Party self-destructing. Few talked about the impact Miers might have on reproductive rights, civil liberties, and, most relevant to a former White House counsel, the power of the Executive Branch. Republicans were permitted to frame the discussion of the Miers nomination entirely around legal qualifications, thus shielding themselves from the accusations of obstructionism that they love to hurl across the aisle. It is understandable that no Democrat called for an immediate up-and-down vote on Miers on the Senate floor — the potential consequence was too serious — but in four weeks of the Right blatantly applying their own litmus test to block a nominee, there was barely any official mention of the irony.
Now Bush has given his conservative base the fight they’ve been waiting for. Samuel Alito, whose nickname, “Scalito,” honors the Justice he most closely resembles, has a long paper trail of judicial decisions, with a view of civil rights and personal freedom so narrow it would make John Ashcroft blush. Most notably, Alito was the lone dissenter in the Third Circuit Court’s decision in Planned Parenthood v. Casey, which upheld many of the protections of Roe. In his decision, Alito affirmed the provisions of a Pennsylvania law that required married women to first notify their husbands before having an abortion. The Supreme Court disagreed with Alito in 1992, saying, “women do not lose their constitutionally protected liberty when they marry.” In another decision, Alito rejected a discrimination claim by a black man who had been sentenced to die by an all-white jury, comparing the statistical evidence that blacks are disproportionately given the death penalty to the odd fluke that a high percentage of US Presidents have been left-handed. In short, we are fucked.
Democrats are gearing up for a protracted battle over Alito in the Senate, but realistically they are in no better position to oppose him than they would have been had the Miers debacle never occurred. Republicans and right-wing bloggers will, indeed have already begun, to lambaste critics of Alito and demand an up-and-down vote. The only option for Democrats may be a filibuster, but with two members of the Gang of 14 senators who brokered the deal to save the procedure, Republicans Mike DeWine and Lindsey Graham, already voicing their support for Alito, even that last resort may not be enough to stop confirmation. The Democrats may find themselves returned to their weakened position, as though the last year of Bush Administration blunders had never happened.
A major confirmation battle in the Senate, especially one that the Republicans seem poised to win, will do more than just reunify the conservative base. It will deflect attention from the President, whose troubles continue to mount: from the bungled handling of Hurricane Katrina relief, to the 2,000th American death in Iraq, and the recent indictment of I. Lewis Libby. The fight over the Supreme Court will put culture war politics back on the table, and relegate Bush’s consistent mishandling of his office to a distant memory. In effect, it will give him a fresh start on his second term.
It is up to Democrats to fight the Alito nomination tooth and nail, but not to lose sight of the bigger picture. The last year has seen the deference paid to Bush by the media and public largely evaporate. True, cultural conservatives may get the Supreme Court Justice they’ve been waiting for in Alito. But this group cannot deliver elections by itself. If the Democrats can stay on message, and not allow the indictments, the cronyism, the scores of casualties at home and abroad caused by this Administration to be forgotten, then they stand a good chance at winning back some ground in Congress, maybe even in the White House. It will be a long road ahead. The record of Samuel Alito is just one more example of why it’s worth it.