Democrats & Alito
SLevinson at law.utexas.edu
Sat Jan 14 21:21:26 PST 2006
>From tomorrow's Washington Post column by David Broder:
Whatever slim chance the Democrats had of defeating his nomination -- and it was never really plausible -- disappeared on the second day of questioning, when the liberals focused on Alito's membership in that controversial Princeton University alumni organization and on his failing to recuse himself in a case involving the Vanguard investment firm.
By shifting the focus from his judicial philosophy to his character, the Democrats set up Alito to play to his strength [not to mention setting up the equivalent of the pornographier's "money shot" of Alito's wife bursting into tears at the meanness of the Democrats].
I think this is absolutely correct, and helps to answer David's question. The Democrats ultimately were incompetent in carrying out the strategy set out by Tribe, Greenberger, and Sunstein, which required discipline and the willingness (and ability) to engage in a fully serious examination of the candidate's views of law (and, in Alito/s case, his demonstrated conservatism and callousness in a variety of cases) rather than go down the path of charcter assassination. As it happens, I believe that his opportunistic citation of CAP back in 1985 raised ssome erious questions; I also believe that it was a mistake to dwell on it for more than a moment or two. It would have been enough simply to demonstrate that he was a snivelling opportunist who was willing to tell his betters what he thought they wanted to hear in order to help his career. Nothing more would have been needed to say.) To put it mildly, most people do not care about the internal workings of Princeton University. The recusal issue re Vanguard is close to silly. I prefer the old days when Justice Woodbury heard a case argued by his son (and ruled against him), i.e., when we actually trusted judges to behave honorably.
The Democrats have all of the organizational skills of alley cats. There was no apparent coordination among the egoes on parade, so that there would be relentless buildup of a case, with care taken in stating the (short) questions and then engaging in meaningful followups. What would have have been highly desirable is hiring "special counsel" like Tribe or Sunstein who could engage in serious "Socratic dialogue" with the nominee, but that would require subordinating their egoes to a serious political cause, which they seem unable at the end of the day to do.
My current hope is that John McCain will run as a third-party candidate,, with a Democrat as VP, and destroy the two-party system as we know it. Ariel Sharon has demonstrated how to do it in Israel. McCain is the closest to a Sharon we have in this country, for better and, I suppose, for worse. At the very least, judicial nominations and confirmations would become far more interesting than they are right now.
From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com]
Sent: Sat 1/14/2006 5:08 PM
To: Sanford Levinson
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Democrats & Alito
>From the New York Times:
"At the 2001 retreat, Democrats listened to a panel composed of Laurence H. Tribe of Harvard Law School, Cass R. Sunstein of the University of Chicago Law School and Marcia D. Greenberger, a co-president of the National Women's Law Center. The panelists told them that the court was at a historic juncture and that the Bush White House was prepared to fill the courts with conservatives who deserved particularly strong scrutiny, participants said.
The panel also advised them, participants said, that Democratic senators could oppose even nominees with strong credentials on the grounds that the White House was trying to push the courts in a conservative direction, a strategy that now seems to have failed the party."
To the extent that I, as a Democratic Senator was looking for a good read on what the consequences of Bush appointees to the Court would be, Tribe, Sunstein, and Greenberger seem like excellent choices; don't know much about Greenberger, but Tribe and Sunstein are clearly among the most brilliant constitutional scholars the Democrats have. But, for the many Democrats on this list, do you think it's wise for the Party to be relying for political strategy regarding nominations on law professors and inside-the-beltway feminist activists?
Caveat: As always with these things, I don't know how reliable the Times report is.
David E. Bernstein
University of Michigan School of Law
George Mason University School of Law
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