GOP Woes and What the Dems Will Do about Samuel Alito

S.T. does a nice job of giving us the “what it all means” review of Tuesday’s events and I’d like to build on it. The Republican Party has fully lost its fashionable insurgency quality and is stuck with the unatractive prospect of just plain governing. Since Newt left, the GOP has not seemed much like the party of big ideas and the war has, in fact, gone on a lot longer than most expected (certainly at the popular level). Fact is, the GOP is on its heels. There is one saving grace. Unlike the GOP of the 80’s and early 90’s, the Democratic Party is not flush with exciting policy prescriptions. Nevertheless, the GOP doesn’t have much positive force right now. They haven’t proven the ability to deliver any of the basic agenda beyond some modest tax cuts. No cut in the size of government, no revolution in social security, no market-driven healthcare reforms, no school choice to speak of . . . just a lot of military action with a steady drip-drip of casualties blown into a flood by an unsympathetic press.

Here’s where Alito comes in. The only thing that saved Bill Clinton and the Dems, perhaps, was that they gained sympathy when conservatives appeared overzealous to crush him. A filibuster against Alito would constitute similar overreach and would give people a reason to rally around Bush and the GOP again. The Dems want to keep W. in the uncomfortable place he’s been stuck in for a while. They won’t offer him the easy way out of emerging as the gallant knight riding to the rescue of the well-qualified and dignified Samuel Alito. He’ll be confirmed with just a little more sturm and drang than John Roberts got.

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29 thoughts on “GOP Woes and What the Dems Will Do about Samuel Alito

  1. I’m not sure, Hunter. Roberts was very much a stealth candidate where as Alito is not and in his history of writing there are things that I think the average person would find pretty objectionable (equating adult women with children leaps to mind).

    I for one said the Roberts nomination was pretty good but I have strong reservations about Alito. I suspect canny dems could craft a very compelling case to keep him off the bench and with the majority of americans seeming to agree that judicial philosophy s a legitimate criteria on which to pass or fail a candidate it may play well across the country. Whether the dems have any canny operators is more of a question.

  2. Hunter, what is your take on delaying the hearings for Alito then? How does that serve their interests, especially with mid-term elections coming up next year?

    I’m with Tlaloc here…I have a hard time seeing the Dems passing on this fight.

  3. Well, we all have our opinions, but if we were in the wagering business, I’d take your wager in a heartbeat if you wanted to put down money that Alito will be filibustered. Americans like conservative judges. It’s like freaking gravity and I’d be taking money from a babe in the woods.

  4. Sorry I was unclear, I wasn’t arguing he’d be specifically filubustered per se, merely that he’d be fought. And if the case is presented well enough possibly voted down. I mean it’s not like congressional republicans really want to stand to close to Bush right now anyway. Given tham a decent reason to step aside and i think they will in a heart beat.

  5. “Americans like conservative judges.”

    What precisely do you base that on? I ask because the most obvious “anti-conservative” judicial decision (Roe) is quite populare (as in more than the majority favor it).

  6. They are delaying the hearings to buy time to figure out how to handle the situation with their base. The base will want a borking without thinking about the consequences. Party leaders will want to win back Congress or the Senate much more than they will want a borking.

  7. Tlaloc, I wonder where you got this idea that Alito equates women with children? Is that some sort of gloss on a willingness to uphold spousal notification of an abortion?

    If so, I’d argue that’s an intellectually dishonest position. The husband/father of an unborn child clearly has SOME stake in the child’s life. Such a statute does not even give him a veto. It merely says he has a right to know. This is hardly equivalent to making women into children.

  8. I wouldn’t use Texas as a baseline for the country regarding judicial perogatives, Hunter. Or really with regards to anything. Notice that Texas is far far out of the mainstream with regards to capital punishment.

    “The base will want a borking without thinking about the consequences. Party leaders will want to win back Congress or the Senate much more than they will want a borking.”

    I don’t see why highlighting his extremism (what you call borking) wouldn’t play well as far as capturing senate and house seats.

    “Tlaloc, I wonder where you got this idea that Alito equates women with children? Is that some sort of gloss on a willingness to uphold spousal notification of an abortion?”

    In his dissent in casey he explicitly equates spousal notification with parental notification which is only logically true if you equate an adult (married) woman with a child.

    see here and here.

    “The husband/father of an unborn child clearly has SOME stake in the child’s life.”

    That’s the wrong question, the right question is “how much stake does he have in his wife’s pregnancy?” The answer there is clearly “none.” He’s not pregnant, she is. Just as she has no say in his getting a mole taken off his back. It’s his body not hers. Pregnancy is a finction of her body.

    “Such a statute does not even give him a veto. It merely says he has a right to know. This is hardly equivalent to making women into children.”

    The other two judges Alito dissented from disagree:

    “The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify—a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

  9. Barring some monumental surprise, Alito will get an up-or-down vote and pass, as Biden said yesterday (http://www.msnbc.msn.com/id/9949579/).

    If Biden is saying this, it’s quite likely to happen. And, despite Alito not being a woman or Hispanic, he is Italian, which will play in the minds of Northeastern Dems with large Italian constituents (not that this would be, or should be, the biggest factor, but it makes going after him hard more costly than it otherwise would).

  10. Tlaloc, you’d be on target with your criticism if I had used TEXAS, but I used a subset of Texas known as Houston, which elects liberals to be mayor on a consistent basis. I further pointed out that EVERY SINGLE JUDICIAL DISTRICT in the county containing that municipality elects GOP judges. You appear to have willfully misinterpreted my example.

    I’m not surprised because you did the same when someone else raised the issue of Barbara Streisand as a liberal hypocrite. It was pointed out she urged people to save electricity, while using an astronomical amount of water for her lawn. You defended her saying she was trying to save electrons rather than water when we all know that her message of conservation is perhaps a bit more holistic than a mere concern for electrons, as you say.

  11. “Tlaloc, you’d be on target with your criticism if I had used TEXAS, but I used a subset of Texas known as Houston, which elects liberals to be mayor on a consistent basis.”

    Sorry Hunter I still stand by my statement for the very simple reason that a houston democrat is almost assuredly far to the right of a mainstream democrat (much as a New York epublican is significantly to the left of the mainstream GOP). Now if youwere talking Austin I’d be more amenable to your position.

    “I further pointed out that EVERY SINGLE JUDICIAL DISTRICT in the county containing that municipality elects GOP judges.”

    I can’t accept that without some evidence. If you have some I’d be interested to read it.

    “You appear to have willfully misinterpreted my example.”

    No just disagreed with it’s relevance/accuracy.

    “I’m not surprised because you did the same when someone else raised the issue of Barbara Streisand as a liberal hypocrite. It was pointed out she urged people to save electricity, while using an astronomical amount of water for her lawn. You defended her saying she was trying to save electrons rather than water when we all know that her message of conservation is perhaps a bit more holistic than a mere concern for electrons, as you say.”

    Someone accused her of hypocrisy and I pointed out that they were blatantly wrong, which they were. During the rolling california black outs she appealed to people to conserve electricity. That has absolutely nothig to do with conserving water. Nothing at all. Nor is it automatically correct to assume she wanted electricity conserved due to environmental concerns. She may very well have just wanted the state to get through it’s electricity problems so she could record her next lousy album. Believe me I have absolutely no love babs. In fact I find her personally incredibly irritating. But a charge of hypocrisy is only true if a person says one thing and does another. I couldn’t find any example of her calling for water conservation. Maybe i just missed it in my search but nobody else seemed to have said proof either.

  12. In his dissent in casey he explicitly equates spousal notification with parental notification…

    I believe that Alito viewed the burden of notification for spouses and children as equal, not the parties involved. Using O’Connor as his guide, he says that neither situation represents an ‘undue burden’. This means that the impact to the mother would not sufficiently harm her ability to have an abortion and/or jeopardize her health.

    The other two judges Alito dissented from disagree:

    Whether or not it’s a good policy for the state to mandate certain forms of communication between family members is a separate question that the other judges addressed. Alito completely dodges that issue. He later even comments the point is practically moot because the law is virtually unenforceable.

  13. “I believe that Alito viewed the burden of notification for spouses and children as equal, not the parties involved.”

    But in order to do so you have to equate the parties involved. Let me give you an example. Lets say that in a case it’s decided that your employer can legally require you to change your breaks to suit their business. In the next case a husband wishes to force his wife to rearrange her schedule. The judge in the second case says “well if it was okay in the first case it’s okay in the second.” That implicitly requires there to be an equivilency in the two situations. In other words it requires viewing the husband-wife relationship as analagous LEGALLY to the employer-employee relationship.

    “Whether or not it’s a good policy for the state to mandate certain forms of communication between family members is a separate question that the other judges addressed.”

    No they addressed whether the husband can legitimately be said to have an interest in her bodily functions to the point that she must notify him of them. And they rightly point out that when you allow such an interest you are paving the way to requiring consent. And in their last sentence they explicitly say what I’ve been saying: “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

  14. A Houston Democrat is a garden variety democrat. The GOP switchover occurred years ago. There are no more dixiecrats or Reagan democrats. They’re in the GOP now.

  15. Human reproduction is of course a thing unto itself, and cannot usefully be compared to anything else, making discussion difficult.

    But here in California, we just voted against parental notification, meaning that the male has no rights or say about any facet of the reproduction process except at its onset.

    That is the prevailing philosophy in this country at this time and is the core issue here, IMO. It might not be unfair to propose that if the male incurs an 18-year obligation for helping to initiate the process, he might retain some rights in it.

  16. “It might not be unfair to propose that if the male incurs an 18-year obligation for helping to initiate the process, he might retain some rights in it.”

    He incurs no 18 year obligation if the woman in question has an abortion so the point is irrelevent to a discussion of abortion notification.

  17. We have already made a joke of marriage; the only thing left to do is profane it.

    Who is we?

    BTW, do you recall our little argument about what the polls meant regarding “restrictions” on abortion?

    I have mixed feelings on spousal notification. Parental, I have no problems. However, I do wonder how it’s enforceable, do they require women to proven they aren’t married?

    I said earlier on this site that I don’t believe the D’s will spend much political capital on opposing Alito, unless they can find something that is “way out there” which seems unlikely from his decisions I’ve read.

  18. But here in California, we just voted against parental notification, meaning that the male has no rights or say about any facet of the reproduction process except at its onset.

    How do you get that? Parental notification isn’t about male versus female, nor is it about the father of the fetus. It’s about the parents of the minor seeking the procedure. I’m not saying you’re wrong on the broader point – having no real desire to get into it – but it doesn’t seem like you can make that logical leap from the information provided.

  19. I have mixed feelings on spousal notification. Parental, I have no problems. However, I do wonder how it’s enforceable, do they require women to proven they aren’t married?

    Studies show that something like 90% of pregnant teens choose to involve or notify a parent of their decision.

    The proposition, such as it was, was a straw man designed to insert a specific definition of fetus and a specific definition of abortion into the law, paving the way for future challenges. Prop 73 was a sham.

    I, too, have mixed feelings on spousal/partner notification. However, we must consider that the spouse/partner assumes none of the physiological, psychological, and sociological risks inherent to pregnancy. In light of those, I have a hard time placing the partner on the same level as the woman.

  20. I was tying parenthood to the reproductive process.

    No, I got that, and I think it’s a valid point worth making. But it doesn’t fit in the context of Prop 73 or even the broader context of parental notification, which is where you placed it.

  21. On spousal notification, I can’t understand why the husband is completely invested (forcibly if need be) in the life of the child if the wife decides to have the baby, but has no rights of any kind if she is pregnant and does not want the child. To me, that’s an injustice. If you have the responsibility, you should have some of the rights.

  22. Let me just repeat what Dick Morris told Neil Boortz the other day on the air. He said that he believes that Bush overreached with the Alito nomination; he predicts that Alito will not be confirmed.

  23. I love Dick Morris. He lays out the premises and identifies the dynamics at work better than almost any political analyst.

    But his predictions are almost always wrong. Genius mathemetician, but his calculator’s broke.

  24. Here’s what we do: we lock Dick Morris and John Zogby in a closet. We force them to give us a prediction each day. We go to tradesports and bet the opposite. We’ll all be richer than Bill Gates inside of five years.

  25. Alito is confirmed and I’ll take anybody’s bet to the contrary. He’s in there. It’s the next justice that brings a bloodbath, at least if Bush gets to nominate the next one.

    If a Dem pres. gets the next one, they’ll nominate whoever the he** they want and the GOP will confirm in large numbers.

  26. But in order to do so you have to equate the parties involved.

    I’ll agree with you here in this sense, Alito recognizes both sets of mothers-to-be as being in full-control of the abortion decision. The reason that parental notification is constitutional is because it does not produce a substantial obstacle to the mother (a minor) from getting an abortion, and because the state has a legitimate reason for requiring it. One of the reasons it is not perceived as a substantial obstacle is that there are all kinds of exceptions for notice included. Alito merely says that, in the same way, the notice requirement doesn’t strip the adult mother of her control in the matter.

    You may disagree with the outcome of his logic, but I think it’s a stretch to say that he is putting women down as sub-adult, or subservient to their husbands. In both cases he assumes that the women have final control over the decisons.

    No they addressed whether the husband can legitimately be said to have an interest in her bodily functions to the point that she must notify him of them. And they rightly point out that when you allow such an interest you are paving the way to requiring consent. And in their last sentence they explicitly say what I’ve been saying: “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

    So what you are saying, then, is that the state DOES have the right to require that minors be subject to this type of dominion from their parent. If the court says that the parental notification law is OK, shouldn’t all teenagers live in fear that their parents will now not only be able to ground them but also press criminal charges against them? I don’t think so. There is no tolerance for required consent in the law (even for minors), and the court has made it clear that the threshold for undue burden is already maxxed out as it is at the notice of intent to abort (with many exceptions) level.

  27. The Bush Administration and others use the terms “strict construction” and “judicial restraint” together as if they were synonymous with conservative or Republican political beliefs. In fact, they are not even synonymous with one another.

    There are several forms of “judicial activism” or “restraint”.

    First, a judge can demonstrate “activism” or “restraint” in the way that decisions are crafted. In the case where a court, such as the U.S. Supreme Court, decides which cases it will accept: Does the court, in its formal opinion, address only the specific issue that prompted the court to hear the case in the first place? – or does the court address other issues that might be raised by the parties? Does the court address only the limited issue or issues necessary to determine the outcome? – or does the court address other issues, in addition, or in the alternative? Does the court limit its discussion to the evidence and the issues in the record of the case before it? – or does the court attempt to make broad statements (often referred to as “dicta”) intended to guide other courts in different types of cases that may arise? This type of judicial activism or restraint has very little to do with “conservative” or “Republican” versus “liberal” or “Democratic” political philosophy. A “conservative judge” in this respect may be socially liberal, while a judge who has very Republican-oriented political beliefs may be an “activist” on the court.

    Independently, a judge can demonstrate activism or restraint in terms the effect that’s given to Congressional or other legislation. Does the court “strictly construe” the words that Congress or a State Legislature uses? – or does the court infuse its own ideas about social or economic policy? Again, this type of judicial activism or restraint has very little to do with whether a judge is politically “Democratic” or “Republican”, “liberal” or “conservative”. If the legislation in question is consumer-oriented, then a politically “conservative” judge might be inclined to ignore the text of the statute. This type of judicial activism is common in the area of preemption, particularly “implied preemption”, where Republican-minded judges who generally favor big business will rule that some Congressional policy prevents a State Court from holding a business accountable, even in cases where Congress has not specifically expressed an intent to “pre-empt” State Law; and even in cases where Congress has explicitly stated that the purpose of the legislation is to protect consumers; and, in fact, even in cases where Congress has explicitly stated in the legislation that the rights of consumers under the common law should be preserved.

    Finally, there is judicial activism or restraint in the interpretation of the Constitution. Generally, the pundits and politicians refer to “strict construction” of the Constitution as a form of political “conservatism” and “judicial restraint”. In many cases, this is true. But “strict construction” also carries a temporal connotation, referring not only to a strict construction of the words that are used in the Constitution, but a construction that limits the intent and effect of constitutional provisions to the historical facts and circumstances under which they first arose. While this approach often produces results which are politically “Republican” or “conservative”, it is important to recognize that constitutional issues almost always involve a contest between the democratic will of the majority, acting through their elected representatives, and limitations on legislative (or sometimes executive or even judicial) power, in order to preserve more enduring principles and to protect the sovereign property rights, personal rights, freedoms and interests of individuals. Therefore, whether one favors “judicial activism” or “conservatism” in this sense often depends on whether he or she happens to be in the majority.

    Safely nestled in the majority, people and their politicians generally favor “strict construction” and “judicial restraint” because it will, more often than not, lead to the triumph of legislative will.

    When, however, legislation is socially “liberal” or “Democratic”, a politically “conservative” or Republican-minded voter, or politician, will want an “activist” judge who is willing to nullify the legislation on constitutional grounds. We frequently see this in Article III decisions, where judges who are politically “conservative” or Republican-minded effectively invalidate legislation on the basis that there is no “standing” to enforce it. In these cases, politically “conservative” judges interpret the Constitution “liberally” in a form of what may be described as “judicial activism”.

    And, of course, because people are likely to be in the majority with respect to some issues, yet fall in the minority with resoect to others, people (including judges) tend to favor “restraint” with respect to some issues, yet “activism” with respect to others.

    This is not to say that valid Separation of Powers concerns do not support the dismissal of many suits brought by ordinary citizen to challenge legislative or executive action or inaction by another branch of government.

    Yet, when you hear a pundit or a politician on tv talking about “strict construction” or “judicial activism”, he or she likely doesn’t know, or doesn’t care, what he or she is talking about.

    For more on Politics, the Media, Literature, and the Law, visit: http://www.gravierhouse.com.

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