A great battle, arguably the climactic domestic political battle of the entire Bush presidency, is brewing in Washington. And before we at Yale march eagerly into the fray along with the rest of the country, we need to stop for just a moment to think about what we are doing.
John Roberts and Harriet Miers, for completely opposite reasons, failed to spark the earthshaking partisan showdown pundits had long anticipated over the Supreme Court. But third time, it seems, is the charm. President Bush has nominated Judge Samuel Alito, a man who has served on the bench for 15 years and is an intellectual darling of the national conservative movement.
Liberal groups are already taking out their sharpest knives. People for the American Way issued a stinging 24-page indictment of Alito’s judicial record within hours of his nomination. The left will almost certainly insist not only that the 44 Senate Democrats unite in opposition to Alito — a reasonable demand — but also that they take the far more drastic step of launching a filibuster. Such a move could shatter the fragile filibuster compromise 14 senators reached earlier this year, plunging the Senate into a partisan feud so ugly and vicious that all business on Capitol Hill could effectively grind to a halt for the next year.
Many Democrats might well conclude that filibustering Alito is worth this unpleasantness, and their calculation is not be hard to grasp. President Bush has been dealt a breathtaking series of setbacks over the last six months, and Democrats now see his political position as one of overwhelming weakness. They think that after stomaching four years of bitter defeats, they are finally poised to crush him in a frontal assault. There is a palpable sense that with one more major blow, the Bush Administration will fold like a shoddy tent, and the president will quack like a lame duck for the remainder of his second term.
It’s a nice idea — and the liberal establishment at Yale has bought into it. Bush announced his new nominee at 8 a.m. on Monday. By the time I unsuspectingly rolled out of bed on Monday morning at the more civilized collegiate hour of 10:30, I discovered that a compact set of “talking points” on Alito had already been e-mailed to the College Democrats’ discuss list. Among the talking points: “Alito would overturn Roe V. Wade,” “Alito would allow race-based discrimination,” “Alito hostile toward immigrants,” and my personal favorite: “Alito supports unauthorized strip searches.”
At the risk of sounding like the wishy-washy spineless moderate so many liberals suspect me of being, it seems premature to unload that kind of ammunition. Of course this man is conservative. After the Miers debacle, Bush had to pick someone who was, and who had a paper trail to prove it. But Alito has not yet earned his nickname, “Scalito”. His endorsement of spousal notification requirements in a 1991 abortion dissent, while troubling and even repugnant, is a far cry from a commitment to reverse Roe v. Wade. And in a long catalogue of other decisions, although he emerges as hostile to Congressional regulation on important issues like gun control and sex discrimination, he also emerges as a cautious follower of the law not prone to strident Scalia-like overreaching. Is Alito really more conservative than, say, John Roberts? Or has he just written more opinions?
That is the $64,000 question: not whether Alito is a staunch conservative, but just how staunch a conservative he is. No matter how many of his nominees go down in glorious defeat, no matter how weak his administration becomes, George Bush will remain two things: a Republican, and the President of the United States. He will not suddenly throw up his arms in surrender and let Ted Kennedy pick our next justice. If we Democrats are going to push for an Alito filibuster, it must not be because we want to humiliate the president, but because we actually think the next nominee will be better. If we don’t, then why exactly are we about to blow the roof off the U.S. Senate?
Democrats need to stop lobbing talking points and start thinking about what’s in the country’s — and, ultimately, their own — best interest. Do we really want to set the precedent that anyone with a long and distinguished judicial record is not confirmable? After all, it was that mentality that brought us the laughably incompetent Harriet Miers. And if that mentality prevails, it will make it nearly impossible for, say, a President Hillary Clinton to nominate highly qualified liberal justices.
Perhaps in the course of the Senate hearings it will emerge that Judge Alito is truly a right-wing wacko. But until we have real evidence that he is outside the mainstream, a scorched-earth campaign and a filibuster will make us look not only obstructionist, but also stupid. Let’s watch the judiciary hearings unfold before we jump to conclusions about Alito. Precisely because the Supreme Court matters so much, blind partisanship is a luxury we cannot afford.
Roger Low is a junior in Branford College. His column appears on alternate Thursdays.