Quote:
Originally posted by Gattigap
I've read very little about Alito. What's his judicial philosophy, Penske?
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While I'm waiting for Penske's photoshop-free exposition on Alito's judicial philosophy, I'll note that Alito's opinion in
Casey apparently sets the stage for the pitched battle on abortion that The Movement has wanted.
At least now we won't be having debates about judicial qualifications, or for that matter about a wink and a nudge from the President about Roe v. Wade.
Slate had a recent piece about how the failed Miers nomination signalled the death of the coded message on SCOTUS nominees:
- The Miers nomination went off the rails about seven seconds after it was announced, in large part because President Bush tried to mollify his base in code. The nominee had no background or record as a movement conservative and no written promises to be the kind of right-wing activist who would spearhead a Supreme Court counterrevolution. What she had—according to the president—was a "good heart." She was a religious person and she was loyal to him. That, Bush thought, would suffice to assure everyone that she had it in for Roe v. Wade.
But it didn't suffice, because movement conservatives weren't willing to settle for a coded message anymore. They have built up a strong and capable stable of thinkers and jurists who are not speaking in half-promises or symbols. And they wanted a nominee with the brains and brawn to overturn Roe because it's bad law rather than just because it's "a sin." The code also didn't suffice because the right had heard the same coded promises about Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter—and had dejectedly watched them go on to uphold Roe. Sick and tired of ambiguous messages and middle-of-the-road nominees, they would not be placated by anyone who wasn't willing to say, as are Janice Rodgers Brown or Priscilla Owen or Edith Jones, that Roe must die now.
John Roberts was the last wink, or coded nominee, the far right will ever accept. Not because he won't prove to be as conservative as they hope. But because they held their fire on Roberts as a quid pro quo; they were assured that an Owen or a Michael Luttig would be their payback for that acquiescence. Bush's base never loved Roberts. They worried about his moderation and his caution and they worried about his possible softness on gay rights after it became clear that he'd been on the wrong side of Romer v. Evans—the 1996 gay-rights case out of Colorado. The outrage you saw over Miers was the outrage of a promise broken.
So The Movement was unwilling to accept another promise from its president, and demanded someone who was on record as being hostile to Roe. Apparently, in Alito, they've got one.
As amusing as Bush's awkward Kabuki Theatre moment was ("C'mon, guys! [wink. wink!] She's
fine! Really!"), it may be to the detriment of Democrats to result in someone like Alito, but being more honest about the nominations may be better for everyone in the long run.
Gattigap
