Attacking Alito

Paul Waldman

January 09, 2006

Paul Waldman is a senior fellow at  Media Matters for America . His next book, Being Right is Not Enough: What Progressives Can Learn From Conservative Success, will be released in the spring by John Wiley & Sons.

They’ve been preparing for this moment for years. Just as liberals had predicted, when Sandra Day O’Connor retired, President Bush nominated a hard right ideologue to succeed her, threatening to swing the Supreme Court’s balance for decades to come. After all the preparation and research and fundraising, the liberal groups are ready to make their attack, to show the American people why this nominee is so dangerous and what his confirmation would mean for America. And that powerful, emotionally charged, stunningly persuasive assault is…Samuel Alito ruled on a case in which he should have recused himself involving a mutual fund company in which he held investments!

Well, knock me over with a feather. If that doesn’t ignite the American people with a fire of righteous indignation, what will?

Here we go again. It looks as though the left is determined not only to lose the battle over Alito’s nomination, but to make sure that at the end of the day that battle does nothing to aid the progressive movement over the long term.

To be fair, this case, involving the Vanguard company, isn’t the sum total of the anti-Alito campaign. But it is playing a lead role. The Democrats on the Judiciary Committee plan to call at least one witness to discuss the case, in which Alito voted with a unanimous court in the mutual fund’s favor despite his previous promise to recuse himself from cases involving the company. IndependentCourt.org , the coalition of liberal groups fighting the Alito nomination, recently unveiled its first television ad, attacking Alito on the Vanguard case.

(The progressive coalition also has an ad which says, “The right wing has already taken over the West Wing. Don’t let them take over your Supreme Court.” The ad features the visages of Pat Buchanan, Rush Limbaugh and Gary Bauer, who will be recognizable to at least one out of every 30 or 40 voters. Perhaps they only had stock photos from the 1990s sitting around the office.)

It seems pretty clear that Alito should have recused himself from any cases involving Vanguard. So what’s wrong with making this such a key part of the campaign against him? The problem is twofold. First of all, liberals are going to have an exceedingly hard time convincing large numbers of people that Alito is some kind of crook. He may have cut some ethical corners, but to reject a Supreme Court nominee, the sin involved is going to have to be pretty serious, and like it or not, to most Americans the recusal issue will seem too technical and nit-picky.

Secondly, this issue says nothing about the fundamental debate progressives should want Americans to be having about this nomination. The Alito nomination isn’t about whether the Supreme Court will follow legal ethics on recusal, it’s about whether abortion will be legal, about whether civil rights and liberties will be maintained, about whether the head of our government is a president or a king. (And it now appears that if there’s one thing Alito has in common with Harriet Miers, it’s the belief that George W. Bush is above the law. This seems to be the real reason both of them got the nod.)

Nonetheless, the anti-Alito campaign seems to be shooting off in multiple directions. There are ads on the Vanguard case, ads on the issue of privacy, and ads on civil rights—though so far there haven’t been any ads on abortion, despite the fact that a recent Harris poll showed that 69 percent of Americans say they would oppose the nomination if they thought Alito would vote to overturn Roe v. Wade , something no one seriously doubts. This diffuse message is exactly what coalitions like IndependentCourt.org are designed to forestall—though perhaps because 53 different groups participate in the coalition, it’s hard to get everyone to agree to a single message.

All of these issues are critical. But right now, it would be hard to sum up in a single sentence just what the left sees as the problem with Samuel Alito sitting on the Supreme Court. Let’s make an analogy to the last presidential race. The central strategic superiority of the Bush campaign over the Kerry campaign can be summed up this way: Do you know the one thing the Bush campaign wanted you to believe about George W. Bush and the one thing they wanted you to believe about John Kerry? Of course you do—it’s that Bush was strong and Kerry was weak. They repeated it every day, and every argument they made related back to that central theme. And what was the one thing the Kerry campaign wanted you to believe about the two men? Damned if I know.

So what is the one thing Democrats and liberals want you to believe about Samuel Alito, the one reason he should not be on the Supreme Court? Is it that Alito is unethical, or that he’ll overturn Roe, or that he’ll let the government intrude on your privacy, or that he’ll give the executive branch unfettered authority? To return to the Kerry analogy, the story has it that at one point during the campaign Paul Begala went to Kerry headquarters, and in a meeting with some of the senior staff, he wrote out a number of central themes the campaign could employ. Pick one, he begged them—I don’t care which one you pick, but pick one.

Can The Left Win By Losing?

There are three possible outcomes to the Alito nomination. The first is that the nomination will fail, either because Alito is rejected in a Senate vote, filibustered successfully or withdraws his nomination. This outcome is theoretically possible, but extremely unlikely. Granted, many people (including myself) initially said the same thing about the Harriet Miers nomination, but the situation here is far different: Alito has 15 years on the bench and the full support of just about every wing of the conservative coalition (though the libertarians ought to be nervous). With the exception of Rhode Island’s Lincoln Chaffee, no Republican in the Senate has uttered a discouraging word about the nomination.

The second outcome is that Alito is confirmed, and the debate passes by the American public without any serious discussion about just what the implications are for the future of Supreme Court jurisprudence and American society. The right gets the replacement for O’Connor it wanted and pays no political price despite the unpopularity of its agenda. We take one giant step toward the eventual overturning of Roe , and on any number of other issues Alito provides the swing vote turning reasonable decisions into radical ones.

The third outcome may be the best progressives can hope for—and the one they should be working toward. In this scenario, Alito ultimately gets confirmed, but not before a debate that makes it crystal clear to the public just what the conservative vision of the Supreme Court entails: overturning Roe , a dramatic narrowing of civil liberties and the president invested with the power to ignore the laws he finds inconvenient.

Make Them Own It

One of the remarkable developments in recent months has been the way conservatives have run from the things they’ve been advocating for years. They finally get a president who pushes to privatize Social Security, and they deny that his plan will do any such thing. They get Supreme Court nominees who believe, as Alito said, that “the Constitution does not protect the right to an abortion,” and they protest that he didn’t really mean it and won’t act on it once he’s on the court. Even Sam Brownback of Kansas, as fervent an opponent of abortion as there is in the Senate, acted during his appearance yesterday on ABC’s “This Week” as though he had no idea whether Alito would vote to overturn Roe and wasn’t too concerned either way. Obviously, the Republicans know that if they were forthright about their agenda and their nominee, the American people would recoil in disgust.

So progressives need to make Alito and his patrons own their true beliefs. Alito’s nomination isn’t merely—to use the words of IndependentCourt.org’s press releases—“troubling” or “flawed.” It represents a radical vision for America. Those who oppose Alito already have the bill of particulars. What they need to do now is focus their criticism on a single theme, not because they think it might be the magic bullet that sinks the nomination, but because it articulates what the true stakes are for the court and the country.

If they do that, at the end of the day they will have advanced the interests of progressivism even if Alito takes a seat on the court. This is precisely what didn’t happen in the case of John Roberts; progressives were so flummoxed by his smooth performance that they couldn’t settle on one good reason to oppose him. As a consequence, Americans never understood the stakes, and no senator will be forced on the defensive by his or her vote for Roberts. But there’s still time to make the Alito vote one of the defining events of Bush’s second term.