Wednesday, February 01, 2006

My Alito Nightmare

Treat this is a single question with a long preamble.

Way back when, well-before Mrs Alito's eyes began to well-up, before the Judiciary Committee began its hearings, I remember reading some bloggers wondering at the fact that the Democrats weren't gearing up to fight Alito, that they seemed to have decided that stopping him from taking a seat on the Supreme Court wasn't worth the fight.

And it wasn't the case that the Democrats were giving up just because they knew going in they couldn't win. It seemed more the case that they'd concluded that he didn't matter.

There are three explanations for that, if it was true. The first is just the natural human tendency towards wishful thinking.

The other is that the Democrats were confident that Alito's vote on future Supreme Court rulings wasn't going to make the difference the Right hopes it will. It might have been Drum, it have been someone else, I'm still looking for the link, but I think it was Josh Marshall I read speculating that the Democrats had convincing evidence that Alito wouldn't upset the Court's present balance.

That would mean they knew that Roberts was more of a moderate than he appeared, or Anthony Kennedy has let it be known that he won't go down in history as the Justice whose vote decided the end of Roe and 30 odd years of settled law and initiated a 50 state battle over abortion rights, or Sam Alito's entire career has been a con and once on the bench the sheep would throw off his wolf's clothing and his first action as a Supreme Court Justice will be to turn to his right and announce, "Joke's on you! Scalito, my ass!"

That would make a great novel wouldn't it? Alito as a Liberal secret agent, spending 20 years deep undercover, smoothly, smilingly, oh so reasonably giving his Right Wing "masters" everything they want, being the perfect little "Federalist," all the while secretly reporting to Ted Kennedy and Justice Stevens, biding his time until the day when they nominate him to the Supreme Court?

I'm afraid the first two possibilities, that Roberts is a closet moderate and Kennedy has suddenly got a lot less swing in him, are as fantastic as the idea that Alito's our Manchurian Jurist.

Washington's a big club, the members tell each other things they don't bother to tell the rest of the country, and it's not crazy to think that over cocktails somewhere Roberts has made it plain to the right people that he's not what the Right thinks he is. I just think that if he had we'd have heard more rumors of that.

Have Kennedy's hinges become sticky and from now is the gate going to swing only one way, towards Souter and away from Scalia? Members of the Club might know but again I think we'd have heard the rumors and that in this case they wouldn't be whispered ones.

Of course even if they were shouted they still might not be audible to someone so far out of it as me.

The third possible explanation for the Democrats' sanguine acceptance of Alito's inevitable confirmation is that they didn't care.

They're willing to see Roe gone, and good riddence. Abortion has been an albatross around the Democrats' collective necks for over a generation. How liberating it will be not to have to defend it any more! We can get back the Catholic vote. We can maybe, finally convince some of religious conservatives to stop voting against their own economic interests and come home to the Democratic Party where they belong.

This raises the possibility that some of those Democratic Senators who voted for cloture Monday did it because they were afraid the filibuster might actually succeed!

If they were thinking like this they are in for a great big surprise. Because it's not going to go away even if the Court throws Roe out the window all at once, which I don't think will happen. I think the plan is to tear it up a little bit at a time. Even if one single ruling wipes it all off the books, we're looking at only a few states that will immediately ban abortions. The rest will do so, if they do so, after long, angry, and bitterly divisive campaigns that will not let Congressmen and Senators off the hook. Even if they protest that they have no say in state governments, they will be asked to take stands, if only becasue their Republican opponents will be happy to take their own stands, loudly and proudly.

But all this is idle speculation on my part. I'm not a member of the Club. I don't know anyone who is. I'm working towards a question for those of you who follow these things closely.

Are there any cases working their way towards the Court now that Scalito and company can use to rule against Roe, either in whole or in part, this term?

It's become conventional wisdom among Liberals that the Republicans do not want to see Roe overturned because it will cost them too much at the polls. They'll lose more women's votes, they'll lose Libertarian votes, and they'll lose the votes of all those Catholics and social conservatives who will not have abortion on their consciences anymore---they will return to the Democratic Party, feeling free to vote their economic self-interest once again.

On top of that, without abortion to anger and energize them, the Religious Right might start staying home on election day.

Fat chance.

I think that Liberals are placing too much hope in the polls that show that most Americans support choice.

Even if the polls actually showed very solid support for choice, even if they showed that 70 per cent of the country was solidly behind a woman's right to choose, it doesn't matter if most of that 70 per cent resides in Blue States.

How many Red and Purple states are there where the polls show a closer to 50-50 split?

Now, to get to my nightmare.

If the Republicans are truly worried that overturning Roe will backfire on them, but they truly want to get rid of it, they'll hope it happens in 2007 when there are no Congressional or Presidential elections to worry about it. They'd be even happier if it didn't happen until 2009.

But the Republicans don't run their own show. Karl Rove does.

Suppose the Supreme Court strikes down Roe this spring. What happens in the fall?

All across the country the elections become referendums on abortion.

Every candidate for Governor, every candidate for state legislator, every candidate for Congress and the Senate wil have to take a stand.

The Religious Right will have something more to fight for.

The Pro-Choice majority will be energized too, but, like I said, it won't matter if most of them live in already Blue States and Congressional and legislative districts.

Every single citizen in the state of New York could turn out to vote for Elliot Spitzer, Hillary Clinton, and 100 per cent pro-choice majorities in the State Senate and Assembly, but what would that matter in Kansas?

Or Ohio?

Or anywhere Democrats face a tough fight?

We know the Republicans are going to work the Terra angle as hard as they can.

I'm sure they're not over gay marriage.

Add a real fight over abortion to the mix...

So, back to my question.

Is there an opening for Alito and the gang to overturn or severely limit Roe this term?


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