For all their badgering over mutual funds and alumni organizations, Democrats on the Judiciary Committee scarcely laid a glove on Samuel Alito this week. Yesterday Ryan Lizza at the New Republic laid out (subscription required) the thin gruel that Democrats have to work with if they hope to mount a filibuster. (They almost certainly won’t do so — but more on that in a minute.) Lizza notes that Alito easily explained every decision of his that Democrats’ questioned, and writes that “Alito and his defenders on the Committee….defanged the major ethics issue — the accusation that, as a judge, Alito should have recused himself from a case involving Vanguard, a company in which he had investments — by simply pointing to the numerous legal ethicists who have declared the charge bunk.”
There are three lines of attack that Lizza takes seriously. First is Alito’s unwillingness to commit himself one way or another on Roe v. Wade. This is also known as “judicial ethics”: A judge is not supposed to pronounce on something that he is likely to have to rule on before hearing the arguments that come before his court. While there has been some debate over whether or not this standard is too rigid, the fact remains that it is the standard under the Code of Conduct for U.S. Judges.
Second is the notion that Alito’s answers to questions about the Concerned Alumni of Princeton made him “seem untruthful.” This is almost too silly to merit a response. “I’m not inclined to believe you, therefore you aren’t credible” isn’t a very good argument either logically or politically.
Third is Alito’s history of defending the unitary executive theory, that radical notion that when the Constitution says that “The executive Power shall be vested in a President of the United States of America,” it means that the executive power shall be vested in a President of the United States of America. It’s somewhat amusing that “unitarian” notions suddenly trouble liberals so much; the most well-known unitarian argument, after all, was Antonin Scalia’s dissent from 1988’s Morrison v. Olson, which upheld the independent counsel statute. Scalia worried about the power given to special prosecutors not answerable to the president, and one could have sworn that the same people frightened over unitarianism now are those who spent years railing against Ken Starr’s unchecked authority.
Of course, many of these critics don’t really understand what they’re talking about; they confuse an argument about the structural nature of the executive with arguments about the scope of executive power. That’s why Lizza writes that the unitary executive issue
might be attractive grounds on which to try to stop [Alito’s] nomination. After all, Democrats note, the argument has the advantage of dovetailing with their current critique of Bush as an unchecked, out-of-control president, as well as their case against the “corrupt” GOP congressional leadership that acts as a rubber stamp for Bush policies. Under this scenario, stopping Alito could turn into a proxy war for stopping Bush. Which is one reason that a filibuster, though not a likely scenario, might still tempt Democrats.
I certainly hope that it does tempt them. Why? Because Alito’s stellar performance would make it easy to trigger the so-called “nuclear option,” under which a simple majority vote to change Senate rules ends judicial filibustering for good. While things may change between now and November, most observers are now betting on marginal gains in the Senate for Democrats, and a two-seat loss for Republicans would increase the power of GOP liberals, making it much harder to pull the nuclear trigger and decreasing the likelihood of winning a judicial showdown for at least the remainder of the Bush presidency.
This would be the perfect time, from Republicans’ perspective, to have a filibuster showdown. And that is why Democrats will avoid that showdown. They will attempt to delay confirmation through wranglings over the debate schedule, and try to appease their friends at NARAL and People for the American Way with lots of bluster. But they won’t stop Samuel Alito from joining the Supreme Court.
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