After Alito: Strategy and Power

• NARAL continues to stand beind the egregious Linc Chafee. Baffling. Even more remarkably, Paperwight discovers that in addition to the generous contributions and endorsements of the Rhode Island Milquetoast, NARAL has given more than 15 grand to the even more hapless Collins and Snowe, and couldn’t even get a symbolic no vote out of them. Look, I understand ideally that it would be nice if choice wasn’t a strictly partisan issue: better outcomes, more leverage, etc. It’s not inevitable that Republican pro-choice legislators effectively cease to exist. But that’s the situation we’re in now, and this fact needs to be faced. NARAL needs to get out of this relationship.

• Having said that, Ezra makes a very important point, and it should be noted that my critiques of NARAL’s strategy are about looking forward. Let’s be absolutely candid: Alito’s confirmation was inevitable, and would have gone forward not matter what NARAL had given or not given to Republican moderates, or if NARAL’s leadership (of PFAW or any other progressive group’s) had started a hunger strike over the issue. There’s the bizarre perception,a point of alliance among DLCers and Naderites –perhaps we can call it “The Theorem of Perpetual Potential Democratic Omnipotence”–that it’s possible for minority caucuses and/or interest groups to accomplish anything if they just really want it badly enough. I think these arguments like also (as with Saletan on abortion) vastly overestimate the power of discourse and underestimate simple raw legislative power. In terms of “anti-Alito narratives,” I think NARAL et al. had a perfectly cogent and accurate narrative: Alito is a judge with a consistent hostility to reproductive freedom, civil liberties, and civil rights. It doesn’t matter, because the majority party in the Senate considers these characteristics features-not-bugs, and the public pays very little attention to Supreme Court debates. The Bork nomination wasn’t defeated by incredible narrative framing or because Democrats in the Senate were brilliant questioners. It was defeated because the Dems had a majority, and the crucial swing votes were Democratic senators in southern states who relied on huge African-American turnouts pondering a nominee who publicly opposed the Civil Rights Act and Shelley v Kramer.

• Or, to expand on Ezra’s historical analysis, look at it this way. Clarence Thomas (as Matt points out) was confirmed by a Democratic Senate, although he was similar ideologically to Alito but far less qualified and replacing a liberal icon rather than a moderate conservative. Defeats of nominations virtually always occur it times of divided government. The only modern precedent for stopping an Alito would be the successful filibuster of Abe Fortas. But that’s pretty clearly not comparable; Fortas had serious ethical issues, was a personal crony (although able and independently qualified to sit on the Court) of a President whose administration was in collapse, and (most importantly) the Democratic majority in the Senate was mitigated by the substantial number of pro-apartheid Democrats who had a particularly strong reason to stick it to LBJ. There was simply nothing comparable about the Alito situation.

None of this is to say that we shouldn’t be learning lessons from the nomination, or that it isn’t possible to develop better strategies. But all of it is small potatoes; as long as the Republicans control the White House and the Senate, we’re going to get extremely bad Supreme Court justices unless the President completely screws up. Whatever criticisms one can have if liberal activists, to attack them for not preventing something they had no power to prevent doesn’t make sense.