Democrats & Alito

[Frank Cross]

Politically, I don't think the Dems can do this, though it might be a good 
plan.  For them to accept somebody who has an anti-Roe record would really 
hit a big part of their base.  And Bush's weakness doesn't help the 
incentive to compromise.

Ironically, had the Dems done this, I'll bet the guy at the top of that 
list would be Alito.  I see no reason to think he's more conservative than 
any of the other likely nominees.  Wilkinson has a reputation as moderate, 
but that's mostly because he's such an outwardly friendly guy.  If you look 
at his actual votes, he may be more conservative than Luttig and certainly 
more than Alito.  I suspect McConnell is probably comparable to Alito, no 
reason to think he's less conservative.  Alito was not a bad choice for the 
left, given the circumstances, as I see no hint of aggressive activism in 
his record or character.  I think the true fear was Garza or Jones and they 
didn't happen.

I suspect the best reasonably available choice for Dems may have been 
Janice Rogers Brown with her libertarian bent, but they cast their lot on 
her long before.



At 09:38 AM 1/15/2006, DavidEBernstein at aol.com wrote:
>I'll disclaim any great political perspicacity, but what if Schumer et al 
>had proposed to Bush some real conservatives, albeit more moderate than 
>Alito, that they could support?  Might Bush have been tempted to get a 
>97-3 vote for Michael McConnell or J. Harvie Wilkinson, rather than expend 
>political capital on a 62-38 vote for Alito?  This is what Orin Hatch did 
>in suggesting RB Ginsburg, who, though often now claimed on right-wing 
>blogs to be a raving leftist, wasactually considered a moderate liberal on 
>the D.C. Circuit, and Clinton chose the 97-3 victory over getting a 
>marginally more liberal, but more controversial, nominee (note this almost 
>worked anyway, in Harry Reid endorsing Harriett Miers).  But 22 or more 
>Democrats were going to oppose ANY Bush nominee that might (1) move the 
>Court "to the right" and (2) be skeptical of Roe (as they opposed 
>Roberts), where was the incentive for Bush to go a little more moderate?
>
>And to get even more specific, I don't think the Democrats have been 
>well-served by the prevalent idea that there is a monolithic conservative 
>"Constitution in Exile" movement with universally shared goals.  This idea 
>obscures very significant differences even among quite conservative 
>judges--more libertarian vs. more statist, greater and lesser deference to 
>precedent, originalist vs. traditionalist, weak-kneed originalist vs. 
>hard-core originalists, pragmatists vs. ideologues, and so on--that the 
>Democrats could have turned to their advantage in signaling what kind of 
>nominee they would support.
>
>
>David E. Bernstein
>Visiting Professor
>University of Michigan School of Law
>Professor
>George Mason University School of Law
>http://mason.gmu.edu/~dbernste
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**********************************************************

Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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