Democrats & Alito
crossf at mail.utexas.edu
Sun Jan 15 09:46:37 PST 2006
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
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
>University of Michigan School of Law
>George Mason University School of Law
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