"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Monday, October 31, 2005

The Second-Most-Qualified Nominee 

You've got to hand it to the Junta - they're not afraid to go big. If they play it perfectly, they can use Samuel Alito's nomination to the Supreme Court to deflect criticism and dominate the mediasphere in a way that will not solve all their problems, exactly, but maybe make them more manageable. The stage is set, and the show is about to begin.

It is hard to imagine a nominee less like Harriet Miers. He has impeccable credentials, in contrast to Miers' distinctly peccable résumé. He has a substantial body of published opinions to his credit, as compared to Miers' Hallmark-heavy oeuvre. The American Taliban will love him, given his record (more about which below), and thus their hurt feelings left over from the Miers debacle will subside without leaving a trace.

In other words, he's filibuster bait.

Harry Reid has already signaled that he's willing to fight the nomination:
Over the weekend, Senate Minority Leader Harry Reid (D-NV) warned Bush over the weekend not to pick Alito, the New York Times notes. Said Reid: "I think it would create a lot of problems."

PoliPundit counts the votes and finds 50 to confirm Alito. However, the more important count is whether the Democrats have the votes to force a filibuster. The key senators to watch are those of the Gang of 14.

Furthermore, with the Bush administration operating in crisis mode -- and midterm elections just one year away -- it's not clear Bush has much ability to force fence sitters to vote for Alito. As we noted before, the reaction to a new nominee during the first few hours are the most important predictor of confirmation. Initial reaction is that Democrats will fight hard.

They certainly have plenty of ammunition to bring to the battle, provided by Alito's own judicial record. Political Wire points to this outline of questionable rulings provided by Think Progress, and several of these decisions - which appear on the surface, at least, to be highly questionable - have been highlighted elsewhere. TBogg, for instance, points to the opinion in Doe v. Groody, in which Alito (in dissent) argued that the police were empowered to strip-search a woman and her ten-year-old daughter, pursuant to a warrant authorizing the search of a premises in which they were residing. Chris Bowers is particularly outraged by Alito's concurring opinion in Planned Parenthood v. Casey, in which he went even farther than his reactionary colleagues on the Third Circuit panel that decided this case (before the liberal Rehnquist court reversed, of course) and wrote that he would have upheld the offensive "husband notification" restriction written into Pennsylvania's anti-abortion statute. And Atrios simply declares Alito "nuttier than Rehnquist" for his opinion that the Family and Medical Leave Act, as applied to the states, was unconstitutional.

This last example (Chittister v. Department of Community and Economic Development) is especially interesting to me, because on one level, the citation of this opinion by Alito's critics is perhaps a bit unfair. My cursory scanning of the usual moonbats this morning reveals that no one is mentioning the crucial detail that Chittister is not a general disavowal of the FMLA, but rather turns on a technical 11th Amendment argument regarding the application of federal employment regulation upon the states. I've had the misfortune of having studied 11th Amendment issues in the distant past, and I know that colorable arguments can be raised on all sides - and usually have far more to do with the murky jurisprudence of federalism than the merits of a specific statute. I don't know that Alito is opposed to the FMLA in general (although, given his coziness with the corporate interests, I suspect he would toss the law out in a heartbeat and concerns about "judicial activism" be damned), but it's disingenuous to imply that Chittister proves his hostility to the policy behind the statute.

To which I say, "so what." Now is not the time to play fair.

The Junta is reeling, and it's about time. Now is the time to go for the jugular. If the Democrats are interested in regaining some of the power they've squandered over the past decade, if they are interested in responsible government, if they are interested in keeping the nation's focus where it should be - on the corruption and incompetence that characterize the Boy King and his flying monkeys - they will attack the judge known as "Scalito" with everything they have. Right now, Harry Reid is counting votes and deciding whether the party he leads is willing to be led, or if they will revert to form and "keep their powder dry." Now is when we discover if we still have a viable opposition party in this country.

And, should the Democrats decide that they have the stomach for a righteous showdown, they must begin by embracing the strategy Holden suggests: On at least two occasions (here, and here), the Empty Flight Suit assured the nation that Harriet Miers was the most qualified available nominee to the Court. Thus, it stands to reason that Alito is, at best, the second-most-qualified nominee. Democrats should be reminding everyone of this unfortunate fact at every available opportunity. They should never utter the name "Alito" without adding the name "Miers" somewhere in the same sentence. They should stand up and ask the President if, this time, he's really sure he found the most qualified nominee. Let Harriet Miers be an albatross around Samuel Alito's neck, and never let him shake her. Ask whether Harriet Miers would have held that husbands have a right to prevent their wives' getting an abortion. Wonder aloud how Harriet Miers would have analyzed tricky 11th Amendment questions (see? this can be a lot of fun!). Although it's sadly academic at this point, inquiring minds can't help but ponder how Harriet Miers feels about strip-searching little girls.

Gee, we miss Harriet already. Let's keep her around for a while longer.




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