Democrats & Alito

Sanford Levinson SLevinson at
Sat Jan 14 08:03:56 PST 2006

As I've argued before, if the Dems are secretly hoping that Alito will quickly vote to overrule Roe (even though there are not now, even with Alito, five votes to do so), then that is smart politics.  But my own prediction is that Alito will choose the strategy that he outlined years ago, which is to eviscerate Roe without formally overruling it, while at the same time writing the President a blank check (unless, of course, Hillary become President, in which case all bets may be off about Alito and the unfettered presidency).


From: Lief Carter [mailto:LHCarter at]
Sent: Sat 1/14/2006 9:55 AM
To: Sanford Levinson; Sanford Levinson; J. Noble; Michael Zimmer
Cc: CONLAWPROF at; conlawprof-bounces at; LawCourts-L at
Subject: RE: Democrats & Alito

How about this alternative explanation to Sandy's take on the Dems role
inn the Alito nomination process?  The
Dems only need to play to their base for the moment, which they do by
making Schumer-like noises.  The lobbying scandal will give them, with a
little help from moderate Republicans like McCain (who must be seething
right now) and Specter, who must be concerned about executive
over-reaching, all the ammo they need in the upcoming campaign.  Indeed,
might the Dems want Alito (over their noisy objections, of course) to be
confirmed as further reminder that the country has gone too far to the
right?  Don't the Dems win if (a) the new Court visibly pulls back on ROE
(as Tribe predicted), helping convert Security Moms back into Soccer Moms,
or (b) the new Court is surprisingly thoughtful and moderate and nuanced
on such issues, challenging the executive and respecful of precedent, in
which case the Christian Right gives up on Bush and the Republicans and
stays home on election day, at least enough to change some close
elections.  I'm not betting this scenario will play out the way the Dems
hope, and Sandy may be right that we are witnessing more feckless Dem
wishful thinking rather than tough tactical maneuvering.  But isn't it all
too plausible that the Dems are thinking this way?  Indeed, in a mini-max
game, isn't this less of a gamble that filibustering Alito and giving Bush
an opportunity to excoriate Dems and getting the spotlight off his major
Peace, Lief


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