Thursday, January 12, 2006

The Stupidity of Ignoring Alito's Achilles' Heels

While those elements of the left still afflicted with strategic tunnelvision find Alito's refusal yesterday to call Roe v. Wade settled law dispositive of his nomination, it seems clear that the real chink in the Alito armor during these hearings is going to surround his personal bias: against women, and against people of color. Watching things, it is clear that the Republicans are far more afraid of this issue than anything having to do with abortion rights.

Good. It's about time someone other than a handful of folks of color started making an issue out of it. Since almost none of even the slimiest Republithugs can bring themselves to publicly embrace a known bigot, whereas they will happily sing Kumbaya in the town square with a rabid pro-choicer, no matter what the left thinks about it.

Alito's decisions are riddled with bias against women and people of color claiming bias and discrimation. Against married women. Against immigrants. This is true, all Republican screaming about US v. Kithcart (a case I will blog since they keep saying it means something it simply does not mean if you look at its subsequent history) aside.

Yet already, the left is saying that the CAP issue has "no traction" and was a "waste of time". Folks are *angry* that most of yesterday was spent on it. It's a "no big deal" - whether he actually believed in CAP, or just lied his ass off on his application for a job in the Reagan administration.

No wonder our side got rolled on Roberts. Folks are so stuck in trying to get the "big win" on things like abortion when no such win is possible. The public itself is not going to demand that Alito not be confirmed on the abortion issue. It will care about things like bigotry (yes, more than abortion; only the left seems relatively unconcerned about it), and overreaching of the President's power. Continuing to emphasize any subject where all points that can be made have now been made and all avenues of inquiry have been exhaused in a futile (and frankly silly, given the law itself) demand that Alito promise that Roe is settled, is what really is a *waste of time*.

We have yet to have a reasonable answer from Judge Alito on CAP, on the questions raised by his seeming endorsement of unitary executive theory, or even on the divergence between what he says about stare decisis and what he actually has done as a judge. Yet the mainstream left wing is already throwing in the towel on CAP merely because they couldn't find his name blaring on a masthead of the Prospect magazine (as if they would have, since his membership was *post graduation*; duh). Forget if we can actually do some damage to the nominee in the court of public opinion on this issue. We'll just give up, because it's "not important".

If the left doesn't t stick to the stuff that so far has actually hurt this nominee (and so far, the only bleeding wounds have been over CAP, his facile interpretations of stare decisis as they related to 3rd circuit precedent, and the Executive Privilege/unitary executive issue) we're guaranteed a reshaped Supreme Court when he's confirmed, with the only consolation for these so-called experts on leftist political strategy their retaliation against those who voted for him in '06 at the polls.

But all their threats of retaliation still leave us stuck with Associate Justice Alito for around the next 30 years.

And folks wonder why I'm on the verge of abandoning the traditional left, and the mainstream Democratic Party. Most of them have the strategic skills of a goat, unable to get past their pet issue or sing in any different note than that which they already sing. Yet in the face of a rather long history of defeat at this point, still insist they know what they are doing, and what is or should be "most important."

When in fact they have clearly forgotten that the most important thing in these situations is to WIN. And if taking up a banner you might not otherwise think important is what has the best chance of leading to a win, it doesn't matter, because you still have won.


At 11:27 PM, Blogger Pam said...

Great post. I lobbed my bomb over at my pad and linked back to you.

At 11:57 AM, Anonymous Sheare Bliss said...

Thank you. I loathe repuglicans, but I'm none too happy with the Dems, either. What the HELL is wrong with them? Alito is just as racist and sexist and classist and elitist as any of his bosses have been. And amen. Racism in this country will never end until people who aren't at the receiving end get riled enough to make it stop.

At 1:57 PM, Anonymous Anonymous said...

Alito is vulnerable on a number of issues, but I disagree that abortion is not one of the vulnerabilities. However, the vulnerability to exploit is one that hasn't gotten people into ossified camps already. And one that could affect white males adversely. Face it, a slim majority of white women are complacent about their own rights, and the current white majority doesn't give jack about people of color.

I personally think that one of the good overlooked vulnerabilities would be Alito's apparent willingness to support Kelo eminent domain decision that gives govts the right to exercise eminent domain for private for-profit projects. Many social conservatives (non-pundit variety) are REALLY upset with this, and this is a wedge issue that would split them vs. the country club Republican set who stand to make money off the expansion of eminent domain without facing risks from it.

At 4:20 PM, Blogger Shanikka said...

Frankly, I think Alito is more vulnerable on the larger questions underlying Roe (i.e. relating to women's freedom generally) than on the issue of abortion itself. His dissent in Casey takes great pains to largely agree with the majority except on two things: (a) spousal notification and (b) parental notification. With regard to the latter, no matter how passionate the most die-hard folks are on the issue, the overwhelming majority of the people in this country are going to back his view. Spousal notification, however, is where he runs into trouble: because it's clear that his reasoning is grounded in archaic notions of marriage itself. If you look at Casey more broadly, with an understanding of his Tax Court decision in Purificato, and his denial of the visa to the Chinese male who could not marry in Chen v. Ashcroft, you can see clearly a quite-frightening harkening back to the day where (a) all "normal people " should be married and the government is in its rights to discriminate based on their failure to do so; and (b) harm to married women means precisely jack to Alito. Their rights stand or fall based on the men they are involved with.

In other words, his vulnerability on the abortion question is not really a vulnerability on abortion unless you believe that the abortion rights should have no limit. The vast majority of the country simply does not buy that, and likely never will. So why try to argue it as a central plank? Why not argue the larger issue of misogyny and keep abortion as one of many examples of that?

As far as Kelo goes, I've stayed away from those arguments for a simple reason: the use of eminent domain to assemble property and then turn it over to a private developer to use while nonetheless claiming a public purpose has existed in this country since the early 1970's. I know this because that is how I began my legal career in 1991 - as a lawyer working on behalf of municipalities assembling property for the purposes of redevelopment. Thus, all this outrage over Kelo is politically nice, but the decision in Kelo reflects a reality that has existed a long long time, in every state. You will do nothing but draw the organized opposition of state and local officials if you highlight it.

All IMO, of course.


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