The DLC is taking the "Vote No, But Don't Filibuster" approach to Alito.
It is set out here:
<
http://www.dlc.org/ndol_ci.cfm?kaid=131&subid=192&contentid=253692>"Democrats in the Senate, and elsewhere, have no obligation to help Bush redeem this divisive campaign pledge. Given Judge Alito's long and consistent record of conservative activism on and off the bench, it is prudent to oppose this confirmation as a matter of principle, reflecting the gravity of a lifetime appointment to a closely divided Court.
But we stress this last point: in the Senate debate on this confirmation, Democrats should focus on Alito's judicial philosophy, and discard the personal attacks that figure so prominently in some of the interest-group campaigning against his confirmation. Such attacks at best distract from the principled case against Alito; at worst, they undermine it.
For the same reason and others, we do not think Senate Democrats should try to filibuster this confirmation. A filibuster is certain to fail; indeed, the Senate is certain to respond to a filibuster by outlawing them permanently in judicial confirmations. Using this weapon now would stake Democrats to the implausible argument that Alito's inevitable confirmation is the most egregious act of the Bush administration and the Republican Senate, going into a critical midterm election.
The second-best way for Democrats to avoid still more Alitos on the Court is to make major gains in the Senate this November. And the best way is to win the White House in 2008."
I think above position of the DLC is morally and tactically wrong.
Morallly:
1. Alito was nominated as a sop to right-wing conservatives when Bush's first choice -- Harriet Myers -- did not pass their ideological litmus test. Harriet was a woman. It was unclear that she would overturn Roe. She didn't have the settled conservative portfolio the right-wingers wanted that would eliminate any doubt about her true colors. The right was afraid Harriet might be another Sandra Day O'Connor. Hence, Alito. Alito is clearly more ideologically conservative than Harriet Myers. The right-wing, pro-life, religious base of the Republican party is thus mollified.
2. Alito espouses a radical theory of presidential power. Under this theory, the President is a "unitary executive" imbued with all executive authority. He is untrammeled by any Congressional or Judicial checks or balances -- at least insofar as his war-making or foreign relation powers are concerned. Under this theory, because the country is "at war against Terror", the President may torture, wiretap, or disregard treaties to which the U.S. is a signatory and that have been previously ratified by Congfress -- such as the Geneva Convention -- if he finds it expedient to do so, irrespective of what Congress or what the Supreme Court may have to say about it.
3. Alito will clearly vote to overturn a woman's right to terminate a pregnancy during the first trimester -- a right grounded on principles of a Constitutional right of privacy found by the Supreme Court to exist in the Griswold v. Connecticut and Roe v. Wade decisions. Such decisions are both of long-standing and over 40+ years old. They have been repeatedly affirmed by the Supreme Court. Alito does not believe in any Constitutional right of privacy and would set these determinations aside in disregard of the judicial principle of stare decisis. The days of back-alley abortions and conflicting and contentious state legislation in the abortion area (which were the norm in the pre-Roe v. Wade era) are likely to return if Alito gets his way. The right would applaud this. Most Americans would not.
4. As a Constitutionalist and as a lawyer, I don't think Alito would be an asset to the Court. He is a right-wing radical and will join Scalia, Thomas, and Roberts in moving the Supreme Court and the country in a direction I think is clearly wrong.
Tactically:
1. Voting no to Alito and not filibustering his nomination when we have the power to do so is, in my opinion, a mistake. First, Alito represents views that are antithetical to basic Democratic values. The Democratic party has never endorsed the concept of a "unitary executive". It represents a dangerous expansion of executive power. Bush and his administration have already given us Abu Ghraib, Guantanamo, Jose Padilla, foreign rendition, and secret European detention centers. They are now presenting us with warrantless wiretapping. All of this is done in the name of the "unitary executive" theory. Do we want a Supreme Court that supports this crackpot idea -- that gives Bush, under the guise of fighting a "War on Terror" a blank check to run roughshod, and with total impunity, over traditional American values? Do we want to give Bush a blank check to torture people? Voting no and not filibustering is essentially assenting to the above. Shouldn't we do all we can do to prevent this? I don't see filibustering as a mistake given what is involved here.
2. Voting no and not filibustering Alito sends a poor message to our base.
That base is pro-Choice and pro-privacy. It is dead-set against torture and warrantless wiretapping. By lamely shaking our heads and voting a meaningless no to Alito, and then failing to use the filibuster weapon, our representatives are essentially abandoning their constituent base -- the very people most responsible for putting our representatives in office. By contrast, the elevation of Alito is all about Bush catering to the radical Republican base. Thus, the Alito nomination is really all about core principles for both parties. Why doesn't the DLC view this the same way?
3. Lastly, in my opinion, the DLC's position is once again too nuanced and, at bottom, to deferential to the Republicans. Yes, Bush technically won the last election. However, his winning margin was razor thin. Conversely, all polls show that Americans are pro-Choice by wide margins. I would submit, then, that Bush hardly has a clear mandate to reshape popular and well-established concepts of Constitutional law. The DLC, then, by opposing the use of the filibuster, is, in truth, not fighting for what the majority of Democrats and a majority of the American people truly desire and believe in. Americans do NOT want an "imperial" president or a return to the days of back-alley abortions.
4. The DLC's argument that if the Democratic filibuster is successful the Republicans will just resort to the "nuclear" option and elevate Alito that way is highly conjectural. They might be able to muster the votes to do this. On the other hand, they also might not be able to do so. First, some pro-choice Republicans would undoubtedly be very hesitant to do this. At least seven "moderates" were reluctant to do so the last time around. Voting to change long-standing Senate rules to get an ideologue like Alito appointed to the Supreme Court would reveal any Republican voting this way to be an opportunist and an ideologue in the eyes of a majority of the American people. Some would probably lose future elections by voting this way.
5. Even if the filibuster were temporarily eliminated, it could be restored as a Senate rule by another Democratic administration.
6. Finally, by all accounts, including the DLC's, a filibuster probably won't work for the Democrats because there aren't enough willing Democrats to undertake it. If so, what do those Democrats willing to make the effort have to lose by trying to filibuster. Such Democrats will at least be able to honestly say that they did everything they could to keep Alito off the bench, but that when all was said and done the votes just weren't there to keep him out. In that event, our true representatives can say they honestly tried to protect the true desires and interests of their constituencies. Not trying, I think, is actually a betrayal of those desires and interests.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
