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The Alito schism

Next January, at Super Bowl time, we’re going to witness a battle for the ages here. But it won’t be like a football game, because neither side will win.  By Howard Fineman.

WASHINGTON – Next January, at Super Bowl time, we’re going to witness a battle for the ages here. But it won’t be like a football game, because neither side will win.

For two Supreme Court nominations in a row – John Roberts and Harriet Miers – the country avoided a brutal debate over the role of the court on issues such as abortion, civil rights and race. At first glance, I thought the choice of Judge Samuel Alito, Jr. would make it three peaceable outcomes in a row. He was qualified (as Miers, who withdrew, was not) and modest (as Roberts, who was confirmed, seems to be).

I was wrong.

We’re looking at a Fight Club battle at the start of the year. The inflammatory content of Alito’s 20-year-old application to the Reagan Justice Department insures that.

Admittedly, Alito was in major suck-up mode in 1985 when he applied to Reagan’s attorney general, Ed Meese, for a job. But the lengths to which Alito went to express the purity of his New Right views is impressive – and explosive — in 2005, as Alito and his White House backers try to sell him as a blandly cautious incrementalist.

Fight'n words
The key line in the application, of course (and it’s already graven on the minds of activists): “the Constitution does not protect a right to abortion.” Alito was 35 when he wrote that; Roe v. Wade was 12.

Alito also boldly denounced other lines of cases crafted by the Warren Court, including landmark decisions on criminal procedure and voting rules.

The memo has changed the dynamics here, sharpening the partisan divide in ways that can’t be fuzzed over as the confirmation war approaches.

A top Democratic strategist tells me he now expects no more than a handful of Dems – eight at the max – to end up voting for Alito. I think it could be fewer. Remember, there are currently 55 Republicans, 44 Democrats and one independent in the Senate. We may well be headed for a “nuclear option” showdown, in which a Democrat would filibuster the floor debate on Alito.

Would the Republican leadership be able to muster the 60 votes needed, including a handful of Democrats, to shut it off? Not clear.

Would the GOP then go ahead and try to end debate with 51 votes, as opposed to the deeply traditional 60? Yes, I think the GOP would. That's the “nuclear” part.


The fallout
So why is this bad news for either party? Aren’t spectacular fights to the death what both always want — and should want? Well, let’s take a closer look.

Isn’t it true (as the new shows) that most Americans support the legality of abortion in “all or most” cases? The answer is “yes” (58 percent).

Isn’t it also true (as the poll shows) that there is overwhelming support, even among Republicans, for permitting abortions when a pregnancy is the result of rape or incest, or when the mother’s health is at risk? Yes. (Among Republicans, the percentages of support are 70 percent and 75 percent, respectively.)

And isn’t it true that Democrats benefit when Republicans look cravenly beholden to their culturally conservative base? Yes ... at least sometimes.

So why wouldn’t Democrats benefit from an Alito Super Bowl? The answer is that, without the kind of subtlety and deftness they have yet to exhibit on cultural matters, the Dems risk looking like pure, pro-abortion crusaders — and that is a problem for them as they seek to return to the majority nationally.

And now, some numbers
The NEWSWEEK poll shows that Americans aren’t “abortion on demand” types.

While voters tend to identify themselves as “pro-choice,” by a 57-34 percent majority, they are far from supporting abortion under any circumstances, and strong majorities are quite willing to support the kinds of procedural restrictions that drive pro-choice purists crazy. For example, even a plurality of Democrats (47-45 percent) says that an abortion should be illegal if its sole purpose is to avoid the economic burden of raising a child. And even Democrats are deeply (a slim 51-43 percent majority) ambivalent about allowing an abortion if its sole reason is that the mother “does not want to have a child.”

Democrats (and the rest of the country) strongly support certain hedges around abortion rights: parental consent for teenagers (68 percent “yes” for Democrats, 71 percent in the country as a whole); parental notification (73 and 78 percent respectively); counseling on the dangers of abortion (78 and 81 percent); notification of the husband (64 and 67 percent); 24-hour waiting period (67 and 71).

Danger ahead
The risk for the Dems is more than in the numbers, it’s a sense that they are so secular that they can’t see the faith-filled American forest for the trees. And now, thanks to the memo, the seculars, who dominate the party‘s fundraising on both Coasts and on the Internet, are in a “we told you so” mood about Alito. The Democratic base will demand nothing less than all-out opposition.

That will put Democrats in the Senate in a tough position, especially those who want to run for president. I am thinking, for example, of Sen. Evan Bayh of Indiana, a cultural moderate who supports some abortion restrictions. Does he dare vote for Alito?

It’s not hard to imagine the debates and ads in, say Iowa or New Hampshire, against anyone who votes for a judge who once declared that “the Constitution does not protect a right to abortion.”

The same goes for Hillary Clinton, Joe Biden and John Kerry. They’ve got to vote “no.” They will argue that Alito was too “extreme” to merit support. That will work in the primaries, for sure, but not necessarily in a general election.

Republicans shouldn’t enjoy the spectacle of any Democratic discomfort over this issue. The GOP has a severe problem of its own, perhaps even the deeper one.

The last thing they wanted was a Supreme Court nominee this out front on abortion. The whole idea was to find someone whose personal views were sufficiently vague to finesse the abortion issue with the American people and the Senate. But first Alito’s mom gave testimony to his pro-life bona fides, and now Alito’s own writings have done the same. He can’t say that this was youthful exuberance (unless he wants to argue that 35 is “youthful”), and he can’t argue that he was fudging for the purpose of getting a job.

That wouldn’t sound good in front of the committee.

So the GOP is stuck with an admitted pro-life purist. And what’s wrong with that? Well, look at the first of the numbers I cited above, and then at a state such as Pennsylvania. It’s culturally conservative (“Pittsburgh and Philly with Alabama in between” James Carville famously observed) and two pro-life contenders are squaring off in the pivotal Senate race next year.

But, already burdened by President Bush’s low poll numbers and his own hard-right image, Republican Sen. Rick Santorum can’t afford to carry any extra weight if he hopes to win votes in the key battleground, the suburbs of Philadelphia. Santorum will surely vote for Alito, but the potential cost of doing so has just gone up.