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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.