Democrats & Alito
mpollack at uidaho.edu
Sun Jan 15 13:51:07 PST 2006
Perhaps I am merely being hopeful. I do not claim any political wisdom, but
I am surprised that everyone seems to see ALito as a done deal. Leaving
aside the disputed issue of whether Alito is a good pick, I would appreciate
some more insight on the political possibilities. Could the Democrates (if
they have the political will) start a fillabuster and explain, during the
fillabustering speeches, WHY Alito should not be confirmed?
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of isomin at gmu.edu
Sent: Sunday, January 15, 2006 1:35 PM
To: Mark Graber
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Democrats & Alito
I'd like to disagree with many of the other posters and suggest that the
Democrats' strategy was reasonably rational.
They knew that they probably could not defeat Alito just by focusing on his
judicial philosophy. WHile he had enough of a paper trail to alarm committed
liberals and Democratic activists, there wasn't enough there to scare the
average voter, nor would it have been easy to launch a Bork-style campaign
trying to show that he would turn back the clock to slavery and segregation.
This was an exaggeration even in Bork's case, but at least in that instance
the Democrats had the advantage of surprise and a real paper trail
questioning key civil rights cases. In Alito's case, they did press the
abortion issue, but that issue alone is not enough to sink a nominee (at
least not in a Republican' controlled Senate).
So they must have calculated that their best chance was to trump up a
scandal, such as the links to the CAP (which really was a distasteful
organization) or the Vanguard incident. If they could trip up Alito on one
of these issues, they could get a TV clip making Alito look bad that could
be included in national TV ads and possibly sink the nomination. Certainly,
they were betting against the odds, but I'm not sure there was any other
strategy that could have given them a better shot at Alito.
I agree that the Democrats might have been able to exploit internal
differences among conservatives to get a "better" (for them) nominee.
However, they were hampered in this not only by the incorrect perception of
a unified "constitution-in-exile" movement but also by lack of consensus
among themselves as to which type of conservative is the lesser of the
available evils. Obviously, they would have preferred another David Souter,
but it's not clear to me that they have a consensus view as to which real
conservatives (i.e. - people that, say, Fed Soc members would consider
"real") are better or worse than others. I rarely give advice to Democratic
activists, but I would suggest that this is an issue they need to think
Finally, I'm not sure that Hatch's gambit to avoid Babbit is really a useful
precedent here. I see absolutely no reason to believe that Babbit would have
been more liberal than Ginsburg. Indeed, he might have been less so because
a former politician is less likely to be rigorous in his ideological
consistency than a former academic, ACLU activist, and judge. Frankly,
Hatch's reasoning here escapes me, except to the extent that it might have
been retaliation against Babbit for his actions on western water rights
issues at the Department of the Interior (as some have claimed).
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
e-mail: isomin at gmu.edu
----- Original Message -----
From: Mark Graber <mgraber at gvpt.umd.edu>
Date: Sunday, January 15, 2006 11:00 am
Subject: Democrats & Alito
> May I suggest that the main problem facing Democrats is collective
> rationality, not stupidity. I suspect, though cannot prove, that
> Democrats in general are behaving intelligently if their goal is their
> reelection. The sort of questions they asked demonstrated their
> commitment to the core principles of their activist base, even if they
> did not inspire voters in other states to oppose Alito. Indeed, there
> may be a good case that a real Democrat revolution would be bad for
> existing Democrats, or at least existing Democratic officials, because
> that revolution is likely to overthrow their power in the party.
> CouldRepublicans have ever gain control of the House under their 1980s
> Mark A. Graber
> P.S. I may have caused some confusion in an earlier post by referring
> to the "true" constitution-in-exile. My argument is not that leftist
> scholars are correct about what the Constitution means, though I'm
> obviously more sympathetic with the jurisprudence, but merely that the
> Constitution been elaborated by the left is now the Constitution
> that is
> really, "truly" in exile.
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