Monday, January 09, 2006

Let the Games Begin - Alito Hearings

The hearings on the nomination of Judge Samuel Alito to be the next Associate Justice of the United States Supreme Court have begun.

I wonder if folks have learned anything from the John Roberts hearings? Will this be another 2 weeks of reassurance about "abortion, all of abortion, and nothing but abortion"? Which, given the political climate across the country, will almost guarantee the same smooth sailing for Alito that Roberts had, particularly given that Alito has proven a facile willingness to lie about his intentions to get the lifetime appointment that is a federal judicial seat.

Like he did about his planned efforts to diligently avoid the appearance of impropriety and conflicts of interest relating to his Vanguard investments and his sister's law firm. Just as he has now *definitely* lied about his post-graduation membership in the racist, reactionary, and rabidly hypocritical (advocating quota-based affirmative action for white men while whining that Princeton was admitting more women and people of color) Concerned Alumni of Princeton. Just as he repeatedly lies about the fact that 35-year old seasoned lawyers do not just make shit up about their personal views on the heart of our democracy, "one man, one vote", a well-settled principle of law about which there has been NO serious debate even from the nuttiest Federalists, solely to land a cushy legal job.

Worrying about an overemphasis on abortion is not misplaced, given what happened with Roberts. This is because the abortion lie is the easiest to tell, the only serious evidence of Alito's views being (a) his statement that he was particularly proud of having argued on behalf of the Reagan Administration that the Constitution does not protect the right to abortion, something that no matter how much folks scream differently was his *job* at the time, given that administration's open and notorious intent to undermine Roe, and (b) his dissent in Casey in the 4th Circuit, which, as folks versed in the law who have actually read his dissent understand, proves absolutely nothing about his larger views on Roe v. Wade- since he stated affirmatively that he agreed with most of the majority and signed onto everything in the majority decision except the spousal and parental notification provisions - the two provisions that studies indicate have both majority American support and the most troubling issues where "undue burden" is concerned, particularly given O'Connor's firm statement in the Supreme Court's Casey decision that the right to an abortion is not the right to be isolated in making the decision about whether to abort). And once Alito says the right words, the odds are great that this will be the end of the matter, because we are in our New America too polite to actually call liars liars. If that is where the energy is spent, I fear that as was the case in the Roberts hearings, all meaningful opposition will fall apart due to time and procedural constraints.

That would be a serious tactical mistake, with far greater consequences than the same mistake yielded with John Roberts' nomination. Because the very thing that could actually guarantee Alito's defeat would end up getting short shrift: his insane views about checks and balances; and his elevation of the role of the President in lawmaking to one equal to that of the Legislature. Will the Senate ignore the cries to keep abortion at the center? Or will they again acquiesce at the expense of hammering home the most important issue for Alito's nomination: his view on Constitutional separation of powers, and the proper role of each of the branches of government?

And thus, again, make the hearings about something that too many grassroots people have doubts about, instead of the things that virtually nobody other than the wingnuttiest wingnut questions, when it comes to how America is supposed to operate?

IMO, given Bush's seizing of the gauntlet on the question of domestic spying, EVERYTHING should fall to the wayside until there is crystal clarity on Alito's views about the power vested in the Presidency and the Executive Branch. This would include clarity and frankly an admission that Alito was just having a "retard moment" when he contended with a straight face despite a law degree from a reputable school, that the President's opinion about the meaning of legislation s/he signs into law should be just as important, if not more important, than Legislative intent when the Courts are construing statutes. And an admission that immunizing the Executive from the legal consequences of its illegal conduct in the domestic spying/wiretapping arena makes us dangerously close in terms of structure to those totalitarian/fascist nations which we say we abhor.

Now, I believe this while also being deeply concerned about Samuel Alito's pretty clear hostility to women making claims that they are victimized by their husbands -- as actually demonstrated in a little known tax decision he authored called Purificato v. Commissioner (3rd. Cir., 1993) 9 F.3d. 290 far more clearly than it is by his dissent in Casey. And while being pretty much horrified at his constant and clear hostility to Black people's claims in pretty much any arena of life -- as aptly demonstrated not only by the CAP membership choice (when he had already graduated and, thus, faced no youthful "pressure" to become a member) but also by his dissents in Bray v. Marriott (3rd Cir., 1997) 110 F. 3rd 986, Riley v. Taylor (3rd Cir., 2001) 277 F. 3d. 261, and Glass v. Phila. Electric. Co. (3rd. Cir., 1993) and majority opinion in Grant v. Shalala, (3rd. Cir., 1993) 989 F. 2d. 1332. And while being nothing but freaked out over the fact that he is hostile to the well-settled principle of one-man, one-vote affirmed by the Supreme Court itself consistently since Baker v. Carr, pretty much the only veneer left on our country being able to claim that holds free and fair elections.

In my mind, all of those are far more important than abortion rights. But if the number of words expended on a subject are any indication of its importance, then clearly I'm in the minority where progressives are concerned since precious little has been said about any of these things in opposition to Alito.

Even though they are likely to be subjects that can get us closer to a TKO on Alito's nomination. Even though a win on these far easier issues -- where Alito's record is far clearer and harder to explain away -- is still a win for reproductive rights, for civil rights, and for the environment. As anyone who is not blinded by unfettered fear and panic (as is always the case, these days, when folks start ratcheting up the unwinnable-by-either-side debate about abortion) can see that. The question is whether they choose to see.

I hope so.

Because this time, we're playing for keeps, all histrionic handwringing about individual causes affecting subsets of the population aside. A Justice Alito that elevates the power of the Presidency over the power of the Legislature -- something that even Antonin Scalia has trouble with, as he made clear in the "enemy combatant" cases -- is an Alito that will be the deciding death knell to our constitutional republic as the framers envisioned it. Make no mistake. In 5 years, Bush has done incalculable damage to our country, in terms of its operation and reputation. Three years more, left unchecked because even the check of a hostile legislature could be ignored by the high court, and I'm not sure we could ever recover.

So I agree with the New York Times' editorial yesterday, which ended:

Judge Alito's nomination is often presented as an abortion rights showdown, but it is much more than that. Those who care about the broad range of rights and liberties that Americans now have, and about honesty in government, should tune into the hearings starting tomorrow - and call their senators with their reactions to what they hear.

In other words: can the Senate please relegate abortion to the single issue that it is, give it it's due time, and not permit it to once again become the hard and fast center stage litmus test it has become where the Supreme Court is concerned, so we can actually hammer home the *big picture* abotu why Judge Samuel Alito is not only a rabid wingnut, but the potential nail in the coffin of our very democracy?

Either way, it's too late to turn back. The job now is to hold our Senators' feet to the fire. I've sent my letters, my e-mails, am standing ready with the phone. Everyone who is out there who claims to be a progressive fighting to take back the country that has not yet done the same is not doing their job, and should hop to it.


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