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Thursday, January 26, 2006

Alito endgame: a look back

The New York Times today headlines its op-ed page with the title: Spineless Senators. Read it. It's worthwhile and expresses this moment well.

Here are some of the pieces I've written about Alito in the last weeks. I think they add up:

  • 12 Common Sense Reasons to Oppose Alito
  • Supreme Court Surprise
  • Samuel Alito at Princeton
  • the light switch

  • Months ago, however, I wrote a comment here in response to a question of why I opposed Alito on the basis of his gender. I focused on questions of legitimacy that would surround an 8-1 male Supreme Court. I think those questions have weight:

    Race and gender equity don't just "happen"...equity, or fairness, is a value based on the understanding that diversity creates both a positive strength (better debate, more rounded points of view) and a legitimacy that its absence lacks. The brutal reality is that we don't get diversity by "happy accident" even though I would argue that equitabe representation is a force multiplier for good in a multi-cultural heterogeneous society like ours.

    Structures that are supposed to represent everyone, and yet underepresent some of us are both less legitimate and weaker as institutions, whatever the meritocratic appeals used to argue that say, a Roberts or an Alito is the "best qualified" to serve.

    Best qualified to be Justice? Or best qualified to serve our nation's interest as Justice?

    The difference in these yardsticks is significant. And the grounds, and the assumptions those grounds imply, are extremely relevant. Imagine for one second that the Roberts Court does take a case that has the potential to overturn Roe. The make up of the court is very germane, not simply in terms of outcome, but in terms of how society views the legitimacy of the debate that generated the outcome.

    One could line up the nine highest scores on a 'Supreme Court Aptitude test', and while, one might find some great Justices, and the Court itself might make 'fine decisions'...if that court were made up exclusively of white men with conservative views...it would be less legitimate, and have a shallower pool of experience and wisdom to serve the nation: which, at the end of the day, is the job of every democratic institution.

    Diversity and equity of representation are values that make our institutions STRONGER. Legitimate representation is extraordinarily important. We fought a revolution over it.

    My political position is that I strongly disagree with choosing two conservative, pro-life, 'pro-business' men to replace Rehnquist and O'Connor.

    Bush's decision to do this moves the debate about Alito, for me, away from the "particulars" of Alito's qualifications and ideology, as it very well might be for a woman like Edith Clement...and into the broader philosophical question of whether we want an 8-1 male Court.

    A conservative woman, a moderate woman (my vote), or a liberal woman might all add the value and legitimacy of a woman's point of view to the Court, thereby enhancing how it serves our democracy. Now, they might each do so in divergent ways. That would not make their points of view illegitimate...just more or less conservative or liberal. Simply put, however, ideology and gender are both important here. What the Roberts court needs, quite simply, is a moderate woman of high qualifications.

    For those who have a problem with this "naked assessment" I would say this: everything is ideological and political. The "appeal to abandon partisanship" is quite often the most partisan appeal in US political life.

    Bush, in my view gave up a substantial benefit of the doubt that goes to a president in making the Miers nomination, then withdrawing it under pressure from the Right, and then nominating a 'white male Pro-Life Conservative'.


    The very same GOP Senators who are now calling for an immediate vote out of "respect for the president's nominee" are the ones who were foaming at the mouth when Bush nominated Miers.

    It's politics, naked politics.

    Given that, my position all along has been that Democrats should have demanded a moderate woman to replace Sandra Day O'Connor on the Supreme Court. The "politics" of that demand...the particular gauntlet of the current media and political environment, the corporate media's love of GOP talking points and the 'fad' for conservatism...do not change what is the North Star of my conviction:

    A moderate woman to replace Sandra Day O'Connor would have given the nation something that a large majority of Americans could agree that our nation both wanted and needed: a moderate female voice on the Roberts Court.

    Like so much of our recent history, this might have been a consensus moment. Our Supreme Court might have reflected our nation instead of reflecting, as it looks to do now, a naked power grab by the religious right.

    What has been lost in the debate about Alito is the grave danger for any democracy where the forces for building consensus are overthrown by rampant demands of ideology "dressed up" as moderation. At the end of the day, Samuel Alito was chosen lock, stock and barrel by and for Bush's conservative GOP base, not for the good of the nation as a whole. Alito was chosen to "push" the ideology of the court to the right.

    Samuel Alito and John Roberts may be accomplished legal scholars, but their views do not reflect mainstream American sensibilities and values. They are both VERY conservative. (In fact, something that has been lost here is that Alito and Roberts are more conservative than many, many Republicans.) Further, an 8-1 male court is not where our nation is headed in the 21st Century, it doesn't reflect who we are. Pretending otherwise is a fool's game.

    It is exactly this fool's game, however, that defines American life in the last two decades. On issue after issue, that is the legacy of the Bush years:

    A GOP that abuses its power and its slim majority with impunity in an attempt to "force" our nation rightward and a Democratic party so spineless that it cannot stand up even for basic American principles like consensus, moderation, and common sense.

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