Weather | Traffic | Surf | Maps | Webcam

 »Next Story»
 Local News
 The Last Week
 Weekly Sections
Subscribe to the UT

The San Diego Union-Tribune

The Alito confirmation

How Democrats lost the political battle

February 1, 2006

With the confirmation of Associate Justice Samuel Alito, the Bush administration has managed to win both the battle and the war over the future of the Supreme Court.

Under the leadership of new Chief Justice John Roberts, the court almost certainly will take a sharp turn to the right on issues such as women's rights, environmental protection, gun control, separation of church and state, presidential power and the relationship between the federal government and the states. It is no exaggeration to say that 10 years from now Americans may be living in a society with less privacy, less autonomy, less democracy (at least at the federal level) and less respect for science.

It did not have to be that way. Unfortunately, Senate Democrats consistently misplayed, overplayed and underplayed their strengths, until they virtually assured their own defeat.

In 2001, when Democrats briefly took control of the Senate (following Sen. Jim Jeffords' defection from the Republicans), they began stalling President Bush's judicial nominations. At the time, that must have seemed only fair, given that Republicans had taken the same approach (and worse) to President Clinton's nominees. But in fact, it was a disastrous decision. Rather than restore fairness to the confirmation process, the Democrats instead set the stage for years of counterproductive acrimony.

When Republicans resumed control of the Senate, following the 2002 mid-term elections, Senate Democrats were not willing to concede defeat, at least on the matter of judicial appointments. Rather, they embarked on the unprecedented course of using the filibuster to block President Bush's nominations to federal appellate courts. Again, the tactic seemed reasonable, perhaps even necessary, at the time. Bush's nominations increasingly came from the far right, and the filibuster was the only way to defeat the most extreme among them. Eventually, Democrats blocked 10 nominees, bragging that the successful filibusters would demonstrate that they also could derail any non-moderate Supreme Court appointment.

In fact, the tactic backfired badly. Senate Democrats came across as petulant obstructionists, perhaps the cause of Minority Leader Tom Daschle losing his Senate seat in the 2004 election. Even worse, Republicans were so enraged by the repeated filibusters that they began to reconsider the sanctity of the filibuster rule itself. Eventually, they threatened the “nuclear option” of abolishing the filibuster through a simple majority vote. That would have thrown the Senate into chaos, repealing a century-old tradition of comity and cooperation. Republicans surely would never have contemplated such a drastic measure, but for the Democrats' seeming refusal to respect the prerogatives of the majority.

The filibuster, it turned out, was a scorched-earth technique that could not be employed and re-employed endlessly. But rather than hold it in reserve for the Supreme Court, Democrats squandered it on a series of ultimately insignificant lower court appointments.

Push never came to shove over the nomination of John Roberts, primarily because he was succeeding the equally conservative Chief Justice William Rehnquist. The replacement of Justice Sandra Day O'Connor, however, was another matter, as she represented the court's crucial swing vote.

Almost miraculously, the nomination of Harriet Miers presented the Democrats with one last chance to keep a centrist on the Supreme Court. And they blew it. Despite her gushy admiration for Bush, Miers promised to be a relative moderate, very much in the mold of Justice O'Connor. For that reason, she came under withering fire from the extreme right.

Much of the assault was palpably unfair, including snarky attacks on her background and education. But rather than defend Miers, most Democrats were happy to watch the intra-Republican bloodbath, hoping that it would further weaken the politically wounded Bush. Miers' fate was sealed when it became clear that neither Patrick Leahy nor Charles Schumer would vote for her in the Judiciary Committee, thus ending the possibility of a bipartisan defense against the fundamentalist barrage.

And that brought us Alito, a nominee who, though modest and affable, is a literal avatar of right-wing jurisprudence. Given one last opportunity to make a substantive case against Alito during his confirmation hearings, many Democrats wasted time on specious charges of bigotry and unethical conduct, while others proved themselves woefully incapable of asking basic pointed questions.

Having debased the filibuster and exhausted their resolve, Senate Democrats could only watch helplessly as the newest justice was confirmed. I hope that I am wrong about Alito (and Roberts), but I fear that we will look back on these events and shudder about what might have been.

 Lubet is a professor and director of the Program on Advocacy and Professionalism at the Northwestern University School of Law.

 »Next Story»
