12 common sense reasons to oppose Samuel Alito
Like a good number of folks I'm a sucker for taking a stand...to a fault. When considering the prospect of Samuel Alito's confirmation to the Supreme Court that kind of thinking has a strong appeal. What this moment calls for, however, is wisdom rather than hyperbole. And, at the end of the day, wisdom gets us to much the same place.
Let me put it this way: there are a myriad number of rationales that are both common sense politics and reflect deeply held American values to justify voting against Samuel Alito and asking the President for a different nominee. Here are twelve:
#1: Samuel Alito is a man.
Many of us wanted and expected a woman nominee to succeed Justice O'Connor...including a good number of independents and Republicans. That is not an unreasonable desire. Being a man is not, of course, a "disqualification" for consideration. But would it be good for the country to have a lone woman member of the Roberts Court? In a word, and for a host of reasons, the answer is no.
#2: Harriet Meiers
The Republicans broke their promise with Meiers and did not give her an "up or down vote." Why should the nation now accept Alito? Are we supposed to reward hypocrisy in the majority party?
In my view, the nuclear option deal changed with the Meiers rejection. Actions have consequences; the GOP should not be able to cherry-pick ideological nominees when it is convenient to them and then demand that the rest of this country, including a good number of independents and moderate Republicans, roll over and simply say "yes" to the GOP base. The Supreme Court belongs to every American citizen, not just Reverend Dobson and the Club for Growth.
#3: the President
President Bush has abused executive powers. It may seem a shame that a nice man like Samuel Alito should suffer because the President can't be allowed to have his way in this political environment. That, however, is what politics are about. Simply put, the Democrats need to send a message about this President's abuse of power. Rejecting Alito is an appropriate way to send a message to the President that he is not above the law, that there are limits to his power.
The Supreme Court may well have to decide on cases relating to the President and the executive branch in the near term; that argues for a consensus and forthrightly independent nominee. Samuel Alito is not that nominee.
#4: The Strip Search
Nothing highlights reason to have "grave concern" about Alito's ascendence to the Supreme Court more powerfully than the strip search of a ten year old girl. Our Constitution, if it does anything, should protect citizens from that kind of intrusive government overreach; in fact we fought a revolution about just such issues. Judge Alito's explanation of the strip search is a warning sign to all Americans about his philosophy. Simply put, a judge with that kind of mindset and failure of judgment should not have a lifetime appointment to the Supreme Court.
#5: Alito won't get Democratic votes
The hearings weren't just about whether the Democrats could "find fault" with Alito. They were a chance for Samuel Alito to persuade Democrats and independents to vote for him. He did not do that. Is it good for the country to have a potential "swing justice" confirmed on a party line vote? No. In fact, the GOP should think long and hard about that reality, not simply because it might well come back to haunt them politically, but also because if Samuel Alito can't persuade Democrats and independents now...how will his opinions persuade the nation later?
#6: Alito is not a mainstream judge
If Bush wanted congressional Democrats to vote for his nominee to replace Sandra Day O'Connor, he should have put up a mainstream candidate, one that was guaranteed support from Democrats, independents and Republicans. Bush did not do this. In fact, Bush did not even ask for Democratic input regarding Alito's nomination. In politics, you reap what you sow. Alito is a die hard conservative when a moderate would have been the appropriate choice to replace O'Connor.
#7: It is about Choice.
The Republican Majority for Choice, an organization that includes Lincoln Chafee, Susan Collins, Olympia Snowe and Arlen Specter among its advisers, has concluded, on the basis of Judge Alito's testimony that they cannot endorse him. Choice may seem to be a "liberal" issue and a safe one for Republicans to bash Democrats with. It is, however, one of the main reasons for the decline of the Republican Party in the Northeast United States. (Note where these Senators are from.)
Despite GOP fantasy, being "pro-Choice"...ie. keeping abortion safe, legal and rare...is a moderate view. It goes without saying that while "anti-choice" politics may be popular for firing up the GOP base, those politics are not so popular in places where Democrats have made inroads lately. In fact, whether Alito's nomination would have the effect of reversing Roe or not, I will say this: if the GOP puts Alito through on a party line vote, they can likely kiss the Northeast and the West Coast goodbye. Further, parts of the New South (VA, NC) and the New West (CO, AZ)...the GOP base...might well become more friendly to appealing, moderate pro-Choice Democrats.
#8: Diversity on the Court.
Roberts and Alito: Two Catholics, two Reagan pro-corporate conservatives, two brilliant scholars, two East Coast attorneys who've spent their lives in legal circles. Of the two, Roberts was a slam dunk. He was unstoppable. He won Democratic votes.
We do not need a more conservative version of John Roberts on the Roberts court. Bush had a chance to strengthen and diversify this Court. He chose Alito, a "more conservative and ideological" version of Roberts, instead. Where diversity is concerned...diversity of viewpoint, of background, of experience, of ideology...Samuel Alito is an extremely poor choice for the Roberts court.
#9: Planned Parenthood v. Casey
That decision is a touchstone of the last twenty years; there really is, in this country, "pre-Casey" and "post-Casey" and they are very different environments. Bush, in nominating Alito, who was overruled in Casey by O'Connor, sent a clear message to the nation about who he thinks is an acceptable replacement for Justice O'Connor. Blocking Alito would send a clear message right back.
#10: Sandra Day O'Connor
Alito is no O'Connor. In fact, he is nowhere close. He may be a scrupulous and nice man. But he is an ideologue. We should not ask an ideologue to replace someone who, agree or disagree with her, and many of us did, clearly "rose the level" of a Supreme Court Justice in both temperment and depth and breadth of concern with our nation as a whole.
We have some experience with an ideologue replacing a "judicial giant." Clarence Thomas has been an utter failure on the court. Adding Alito to Scalia and Thomas would weigh the court with justices who are actively hostile to everything that O'Connor stood for. That would be a shame with lasting consequence.
#11: The law and the court should serve the people, not the other way around.
The core insight we can take from the Alito hearing is that he does not get this. Our framers did. It was part of the philosophy that moved them. It is our Constitution, our Bill or Rights, our Congress, and our Court.
The law derives its power from the consent of the governed. Our history is one of progress for expressly that reason; we are not slaves to a "dead Constitution"....we are free men and women who live the Constitution every day. A judge who does not understand this, does not understand America.
#12: The consequences.
America has a choice right now. We can leave Samuel Alito to serve the country in the Federal Courts, as he has ably, if ideologically, done for fifteen years, or we can move him, through a divided Sentate and a divided nation to the Supreme Court where he will be a symbol of divisiveness and ideology for decades.
That's good for neither party, nor for the nation as a whole.
If we leave Alito in his post and reject this president's nomination, we lose nothing. In fact, we gain a chance to find a new nominee who can win widespread support and help heal the divide that threatens the very soul of our democracy.
We have nothing to lose in asking the President for a more acceptable nominee. In fact, patriotic Americans from all sides who understand the "Common Sense" that resides at the heart of our tradition should demand it.
Hyperbole aside, our nation truly stands upon a brink, an ideological divide that threatens to cleave our fifty states in two. We have turned away from brinks like this before. It would be a wise thing to do so now.
Let me put it this way: there are a myriad number of rationales that are both common sense politics and reflect deeply held American values to justify voting against Samuel Alito and asking the President for a different nominee. Here are twelve:
#1: Samuel Alito is a man.
Many of us wanted and expected a woman nominee to succeed Justice O'Connor...including a good number of independents and Republicans. That is not an unreasonable desire. Being a man is not, of course, a "disqualification" for consideration. But would it be good for the country to have a lone woman member of the Roberts Court? In a word, and for a host of reasons, the answer is no.
#2: Harriet Meiers
The Republicans broke their promise with Meiers and did not give her an "up or down vote." Why should the nation now accept Alito? Are we supposed to reward hypocrisy in the majority party?
In my view, the nuclear option deal changed with the Meiers rejection. Actions have consequences; the GOP should not be able to cherry-pick ideological nominees when it is convenient to them and then demand that the rest of this country, including a good number of independents and moderate Republicans, roll over and simply say "yes" to the GOP base. The Supreme Court belongs to every American citizen, not just Reverend Dobson and the Club for Growth.
#3: the President
President Bush has abused executive powers. It may seem a shame that a nice man like Samuel Alito should suffer because the President can't be allowed to have his way in this political environment. That, however, is what politics are about. Simply put, the Democrats need to send a message about this President's abuse of power. Rejecting Alito is an appropriate way to send a message to the President that he is not above the law, that there are limits to his power.
The Supreme Court may well have to decide on cases relating to the President and the executive branch in the near term; that argues for a consensus and forthrightly independent nominee. Samuel Alito is not that nominee.
#4: The Strip Search
Nothing highlights reason to have "grave concern" about Alito's ascendence to the Supreme Court more powerfully than the strip search of a ten year old girl. Our Constitution, if it does anything, should protect citizens from that kind of intrusive government overreach; in fact we fought a revolution about just such issues. Judge Alito's explanation of the strip search is a warning sign to all Americans about his philosophy. Simply put, a judge with that kind of mindset and failure of judgment should not have a lifetime appointment to the Supreme Court.
#5: Alito won't get Democratic votes
The hearings weren't just about whether the Democrats could "find fault" with Alito. They were a chance for Samuel Alito to persuade Democrats and independents to vote for him. He did not do that. Is it good for the country to have a potential "swing justice" confirmed on a party line vote? No. In fact, the GOP should think long and hard about that reality, not simply because it might well come back to haunt them politically, but also because if Samuel Alito can't persuade Democrats and independents now...how will his opinions persuade the nation later?
#6: Alito is not a mainstream judge
If Bush wanted congressional Democrats to vote for his nominee to replace Sandra Day O'Connor, he should have put up a mainstream candidate, one that was guaranteed support from Democrats, independents and Republicans. Bush did not do this. In fact, Bush did not even ask for Democratic input regarding Alito's nomination. In politics, you reap what you sow. Alito is a die hard conservative when a moderate would have been the appropriate choice to replace O'Connor.
#7: It is about Choice.
The Republican Majority for Choice, an organization that includes Lincoln Chafee, Susan Collins, Olympia Snowe and Arlen Specter among its advisers, has concluded, on the basis of Judge Alito's testimony that they cannot endorse him. Choice may seem to be a "liberal" issue and a safe one for Republicans to bash Democrats with. It is, however, one of the main reasons for the decline of the Republican Party in the Northeast United States. (Note where these Senators are from.)
Despite GOP fantasy, being "pro-Choice"...ie. keeping abortion safe, legal and rare...is a moderate view. It goes without saying that while "anti-choice" politics may be popular for firing up the GOP base, those politics are not so popular in places where Democrats have made inroads lately. In fact, whether Alito's nomination would have the effect of reversing Roe or not, I will say this: if the GOP puts Alito through on a party line vote, they can likely kiss the Northeast and the West Coast goodbye. Further, parts of the New South (VA, NC) and the New West (CO, AZ)...the GOP base...might well become more friendly to appealing, moderate pro-Choice Democrats.
#8: Diversity on the Court.
Roberts and Alito: Two Catholics, two Reagan pro-corporate conservatives, two brilliant scholars, two East Coast attorneys who've spent their lives in legal circles. Of the two, Roberts was a slam dunk. He was unstoppable. He won Democratic votes.
We do not need a more conservative version of John Roberts on the Roberts court. Bush had a chance to strengthen and diversify this Court. He chose Alito, a "more conservative and ideological" version of Roberts, instead. Where diversity is concerned...diversity of viewpoint, of background, of experience, of ideology...Samuel Alito is an extremely poor choice for the Roberts court.
#9: Planned Parenthood v. Casey
That decision is a touchstone of the last twenty years; there really is, in this country, "pre-Casey" and "post-Casey" and they are very different environments. Bush, in nominating Alito, who was overruled in Casey by O'Connor, sent a clear message to the nation about who he thinks is an acceptable replacement for Justice O'Connor. Blocking Alito would send a clear message right back.
#10: Sandra Day O'Connor
Alito is no O'Connor. In fact, he is nowhere close. He may be a scrupulous and nice man. But he is an ideologue. We should not ask an ideologue to replace someone who, agree or disagree with her, and many of us did, clearly "rose the level" of a Supreme Court Justice in both temperment and depth and breadth of concern with our nation as a whole.
We have some experience with an ideologue replacing a "judicial giant." Clarence Thomas has been an utter failure on the court. Adding Alito to Scalia and Thomas would weigh the court with justices who are actively hostile to everything that O'Connor stood for. That would be a shame with lasting consequence.
#11: The law and the court should serve the people, not the other way around.
The core insight we can take from the Alito hearing is that he does not get this. Our framers did. It was part of the philosophy that moved them. It is our Constitution, our Bill or Rights, our Congress, and our Court.
The law derives its power from the consent of the governed. Our history is one of progress for expressly that reason; we are not slaves to a "dead Constitution"....we are free men and women who live the Constitution every day. A judge who does not understand this, does not understand America.
#12: The consequences.
America has a choice right now. We can leave Samuel Alito to serve the country in the Federal Courts, as he has ably, if ideologically, done for fifteen years, or we can move him, through a divided Sentate and a divided nation to the Supreme Court where he will be a symbol of divisiveness and ideology for decades.
That's good for neither party, nor for the nation as a whole.
If we leave Alito in his post and reject this president's nomination, we lose nothing. In fact, we gain a chance to find a new nominee who can win widespread support and help heal the divide that threatens the very soul of our democracy.
We have nothing to lose in asking the President for a more acceptable nominee. In fact, patriotic Americans from all sides who understand the "Common Sense" that resides at the heart of our tradition should demand it.
Hyperbole aside, our nation truly stands upon a brink, an ideological divide that threatens to cleave our fifty states in two. We have turned away from brinks like this before. It would be a wise thing to do so now.
Comments
Many times, justices have retired before any such confirmation, leaving the court temporarily with 8 justices (and potential 4-4 split decisions). In fact, I understand this as a much more common practice. It is worth thinking, now, about what message O'Connor is sending by her willingness to serve until the "nomination and confirmation" of her succesor.