A hill to die on? Posted by: McQ
on Tuesday, November 01, 2005
That's what Republican senators have to decide concerning the nomination of Sam Alito—is his nomination that hill?
The left's battle plan is fairly transparant given the press releases from the likes of Ted Kennedy, Howard Dean, Chuck Schumer and Patrick Leahy. David Corn pretty much lays it out in The Nation:
There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant US attorney general, a US attorney and an appeals court judge. He is reputedly intelligent and scholarly. There will be no major disagreement over document releases; there are fifteen years of appeals court decisions for his friends and foes to scrutinize. That leaves the Democrats one avenue of attack: Alito would be bad for America.
The liberal Democratic senators and the progressive groups are already trying to affix a big red "E" to Alito's robe—that's "E" for "Extremist"—and pointing out how conservative he has been on the Third Circuit Court of Appeals.
That's precisely what I pointed to below. But quite frankly that's not going to be enough for the Dems to defeat Alito. Again, Corn points to what he thinks they must do to be successful in that endeavor:
But the Democrats need to do more than rely on the usual extremist-baiting. They have to state clearly that they are opposing Alito—whose philosophical similarity to Justice Antonin Scalia has earned him the nickname "Scalito"—for policy reasons. The Supreme Court, they should argue, keeps becoming more significant in the lives of Americans, deciding critical matters (privacy rights, religious controversies, environmental laws, assisted suicide and at least one presidential election). Consequently, Democrats should say they are now going to judge potential Justices on the basis of where these men and women may lead the nation.
I can only hope that the Democrats will do precisely as Corn suggests. Because if they do, they will demonstrate for all to see that they consider the court to be a sort of super-legislature and not a judicial body.
Instead, the court's job is interpretation and they decide cases through the power of judicial review as outlined in Marbury v. Madison.
It is not a question of "where these men and women may lead the nation". They're not leaders. Leaders, in this form of government are elected. Instead, they're reviewers and interpreters. They make decisions based on their review and interpretation, but only about the Constitutionality of the law upon which the case is based.
Corn's suggested strategy demonstrates how deeply the left has bought into the premise that it is the court's job to enact what the left has been singularly unsuccessful in passing in the legislatures of the nation. And, of course, he would argue that his approach isn't activist, but instead the job of the court as he sees it.
A little further into Corn's strategy for Borking Alito he states:
Yes, in the past, Republicans have voted for qualified Court nominees who were liberal (Ruth Bader Ginsburg, for one), and Democrats have voted for qualified Court nominees who were conservative (Scalia, for some reason, comes to mind). But the Democrats should candidly declare such days are over—at least for now, with the Court hanging in the balance and Bush actively moving to shove it in a distinctly ideological direction. Democrats have no obligation to watch and wave as Bush and his now-happy and unified conservative base proceed in a manner they believe to be inimical to the interests of the nation.
So Democrats should be honest and blunt and declare they are opposing Alito because of how they expect he will vote. And they should explain—in broad, values-laden language, not the rhetoric of process—what they fear and how Alito's decisions could affect Americans. There is nothing wrong with a senator proclaiming that protecting reproductive rights and privacy rights is a top priority and that he or she would not vote for a Justice who is likely to restrict those rights or even seek to abolish some of them. The same goes for any senator who believes abortion is mass murder. Why should such a senator vote for a nominee who would protect such a practice?
And the Republicans? Well, they need to remind themselves they're the majority, they won the election and those who made that possible want them to make that point plainly and unequivocally to the Democrats. Should the Democrats choose to reason as Corn suggests, then the same sort of reasoning process is open to the Republicans. If the Democrats decide they must necessarily politicize the confirmation process instead of determining if the nominee is qualifed to serve, then so, necessarily, must the Republicans. Or said another way, if the Democrats choose to apply a litmus test - and make no mistake, what Corn writes above is precisely that - then the majority Republicans have every right to do the same. I'd hate to see it come to that, but I think it is inevitable given the propensity of the left to frame everything in terms of abortion and abortion rights.
The inevitable end-state of such a strategy is the "f" word ... filibuster:
Confronting the Alito nomination in this fashion could lead to the dreaded "nuclear option"—if (and it may be a decent-sized if) Senate Democrats, who split on the John G. Roberts Jr. nomination, come together in opposition to Alito. The Democrats have enough votes to mount a filibuster. Such a move would no doubt be met with a revival of the GOP effort to change the Senate rules (which only requires a vote of fifty-one or more senators) to eliminate judicial filibusters. When the "nuclear option" was defused last spring, the seven GOP members of the so-called Gang of Fourteen agreed that filibusters could be used in extraordinary cases. In a way, the compromise agreement handed the Republican Seven a veto over the Democrats' deployment of a filibuster. If these Republicans did not consider a situation "extraordinary," they presumably would join the rest of the Republican Senate caucus and vote for the nuclear option, killing the filibuster at hand (and any future filibuster). It's early in the nomination process for Alito, but my hunch is that these GOPers will not buy any Democratic claim that Alito is an "extraordinary" case. There's nothing extraordinary about nominating a fellow with Alito's résumé to the Supreme Court. So a strong Democratic challenge to Alito could trigger Armageddon in the Senate.
And that, of course, brings us to "the hill to die on".
Will the Senate Republicans indeed consider this nomination that hill? Will they actually take a stand, show solidarity and force the Democrats to back down? Or will they instead find some way to turn what is sure to be vociferous minority dissent into minority procedural victory by refusing to force a vote?
Corn actually says that if the Democrats force the filibuster, they shouldn't push it too heavily or complain too loudly if the Republicans use the nuclear option because, as Corn opines, the Democrats would not have the backing of the majority of the public if they do filibuster.
If the Alito nomination becomes the titanic battle that both sides in the judicial wars have been anticipating for years, the Democrats and their allies in the lobbying groups will have to create a new playbook to have even a chance of beating back Alito. If they stick to the same old strategies, they could end up wishing that Harriet Miers had fared better.
My guess is, and it is only a guess based on the talking points we saw immediately from various Democrats, that they will use the old playbook and push the "E" meme to the hilt.
Corn thinks this is a sure loser. But I'm not sure. Again, this really isn't up to the Democrats (nor has it really ever been) because the unanswered question remains ... will Senate Republicans actually have the gumption to see this through?
Are they prepared to die on this hill? I'm still not sure they are.
The base - you know, we "radical right" extremists who Borked the wonderful, cooky-baking Bush friend Miers - is ready to fight the battle. I, for one, would love a real showdown on "originality" versus "penumbras." And then fillibuster. Make that rotten Klansman Byrd stand and talk and talk and talk until he bursts his Depends. Shove every sleazy, lying attack the Dems will use back in their smug, worthless faces.
That’s what I want.
The spineless clowns who inhabit the right aisle of the Senate won’t fight this battle. They’d rather play nice with the left, rather have sweet words written about them in the Times, and, frankly, wish the redneck, fundy, gay-bashing conservatives would go away and let them make the laws and the decisions in the happy, collegiate "world’s greatest deliberative body" they so enjoy infesting.
The Senate Democrats want to win. The Republicans want to be liked. Guess who comes out on top in that fight?
The Democrats cannot afford to lose a fight over the "nuclear option" during the Alito nomination. If they do, it decreases their leverage over any future nominations, say when replacing Stephens or Ginsberg. And they may pick up a seat or three in 2006, which would make it tougher for the Republicans to push the "nuclear option" through, given that they have some vacillating moderates.
So I predict they will replicate what they did over Roberts. They will head fake as if they are going to do a full scale filibuster, but as soon as the signals come in that the nuclear option would succeed, the filibuster effort will be quietly dropped.
They have to put up a symbolic fight, just as they did over Roberts. Because of Alito’s presumed position on Roe vs. Wade, the symbolic fight has to be a lot more visible. But barring three or four serious lapses among Republicans, the Democrats can’t win over Alito.
Graham and Dewine, both Republican members of the Gang of 14, have already signaled that Alito does not meet the criteria to allow a filibuster by the Democrats. Those guys are in the best possible position to know what is going on behind the scenes in the Senate. When Graham says he doesn’t think there will be a filibuster, the chances for the Democrats to succeed with one must be low indeed.
Graham and Dewine, both Republican members of the Gang of 14, have already signaled that Alito does not meet the criteria to allow a filibuster by the Democrats. Those guys are in the best possible position to know what is going on behind the scenes in the Senate. When Graham says he doesn’t think there will be a filibuster, the chances for the Democrats to succeed with one must be low indeed.
I’d also point out that McCain has repeatedly said that a president is entitled to his nominees as they come as a part of his electoral victory. That’s how McCain rationalizes voting for the liberal members of the court for which he voted. And, based on his statement yesterday, that’s going to be his rationalization for supporting Alito.
I rise to protest this remark about Byrd’s health. Would you say “until his pacemaker battery runs down”? Hateful remarks referring to someone’s involuntary health problems are offensive and especially so with regard to senior citizens. Please take care to be more respectful of those who suffer from urinary problems. You may face that challenge yourself before this is all over. Deride Byrd for being a Klansman, pork or other political issues. Sorry for the bummer; I assume that the writer just hasn’t thought the remark through.
I submit that if the Republicans do not choose to "die on this hill" in ensuring that Alito is confirmed—by whatever tactics the process requires—they will certainly "die on this hill" at the ballot box.
I wonder if it’s possible—or if I’m attributing too much slick and skill to the Roveans—that the whole Meirs thing was a deliberate tactic to fire up the base for just this fight.
Now the Senate Republicans have a choice: they can pretend to collegiality with the Democrats, or they can face an angry, fired-up base.
And that, of course, brings us to "the hill to die on
You need to change your metaphor here, because if they choose to fight the Dems and the nuke option, it’s not a hill for THEM to die on. It’s a hill for them to KILL on. They can only win if they fight
I am glad Bush maed a good choice for supream cort. There is more amaricans who want no abortion and the iraq war is to stop terorism. I like Bush becuase he don’t back down and we need a cristian man who Alito is.
I think Bush feared the same lack of cojones by the pub senators to die on this hill, and that’s why he chose Miers. Bush has given the right wing the battle they prayed for. Are they up to it?
