Althouse on Alito

Sanford Levinson SLevinson at
Tue Nov 1 13:12:40 PST 2005

Ann writes:
Do you win elections by fighting down a man like Alito?

I don't think that Alito has much to do with winning or losing the next election.  Rather, the arguments for fighting his nomination to the bitter end (in spite of what seem to be genuinely attreactive qualities in the man) are twofold:
a)  This is drawing a line in the sand with the current Republican leadership and its take no prisoners style of governance.  If they want this nomination, they're going to have to "go nuclear," which means, ironically, that a Democratic President would in fact be able to make some liberal nominations.  As I wrote earlier, I just don't trust the current Republican leadership to play fair with a Democratic President in this regard, which is why I think it's uterly beside the point that Ann would like some strong liberals as well as strong conservatives on the Court.  There are a lot of things I'd like, but the question is how do you get that happy result, and it's not by having faith in the good will of people who have been demonstrating for the past decade that they have only contempt for those who disagree with them.
b)  The brilliance of the Bush nomination strategy  (save for Meirs) is that he's trying to tie up the Court for the next 25 years.  The conservatives are relative youngsters, given todays lifespans.  The most likely next retirees are Stevens and Ginsburg.  With Roberts, Alito, and Thomas on the Court, that is a strong conservative presence for the next 25 yeas, when Alito will be only 80.  It's a good calculation that Republicans will be able to make two appointments among the successors to the other six justices, when the time comes.  This is one reason why life tenure on the Supreme Court is so pernicious.  If we were talking about a single 18-year term for Alito (and if everyone else were serving 18-year terms), then I'd be open to Ann's generosity of spirit, which speaks well for her.  But, again, that's not the world we live in.  
A totally gratuitous comment:  More and more, I understand why some friends of mine exhibited more trust in George Bush to fight terrorism than in John Kerry.  (Whether Bush has the slightest idea how to do that is an entirely separate question.)  Republicans really and truly stand for things, and they're willing to push the envelope, as demonstrated by this nomination.  Democrats fall all over themselves to be understanding and to figure out good reasons not really to make waves with regard to the nomination, just as Republicans (falsely, I believe) accused Kerry of bending over backword to be understanding of our adversaries.  Pat Buchanan was speaking accurately, but indiscretetely when he spoke to the 1992 Republican Convention about enlisting in a culture war.  That's what has been going on for at least the past decade.  It's even true, incidentally, that liberals have been winning important aspects of that war.  I can understand some of the conservative fury at cases like Lawrence, which "shouldn't have happened" in a Court dominated by Republican appointees.  So conservatives are out to win. Do the Senate Democrats simply want to wait a few weeks before surrendering, or are they willing to fight, not necessarily because they think they will in fact stop this nomination, but becasue it's worth "going nuclear" for long-term reasons.  Ever since Cliff White took over the  Republican Party for the Goldwaterites in1964, they've have a long-term strategy that included a willing to accept short-term defeats in behalf of long-term goals.  Democrats seem to have no sense at all of what their long-term goals are other than "saving Roe," which, as I've argued at length before, is probably counter-productive to the actual electoral interests of the Democratic Party.  (What we will probably get is the worst of all worlds, a completely "hollowed-out" Roe that at once does not adequately protect truly vulnerable women, unlike middle-class women who can effectively fend for themselves, or set the stage for a real electoral shoot-out that the Democrats could in fact win.)  .  
A last point:  I would be thrilled to have Samuel Alito on my faculty, unlike Harriet Meirs.  I assume that almost everyone on this list would be similarly thrilled.  I also assume that that's totally irrelevant with regard to picking someone for a life-tenured appointment on such a completely peculiar institution as the Supreme Court of the United States.
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