The first day of the Alito hearings were a fascinating exercise in Kabuki theater. Judge Alito sat impassively as members of the Senate Judiciary Committee spoke at him and the cameras, laying the groundwork for the questions to come in subsequent days. Yet everybody realizes that Alito will do his best not to answer the questions that actually matter, including the Senators who promised to ask them. Instead we’ll hear more bromides, as we did when he finally spoke briefly and irrelevantly, about how he played baseball in high school. In any event, why should anyone assume that Alito’s answers are worth the air they’re spoken on? To extricate himself from the embarrassing memo he wrote importuning the Reagan Administration for a promotion—a memo in which, for example, Alito Borked himself by attacking the Supreme Court ruling that elections should be decided by one person, one vote—we’re now told to disregard his statements because the memo was just a “job application.” Maybe that’s a fitting rationalization from a Republican Party whose poster-boy lobbyist Jack Abramoff, lied on a multi-million dollar loan application, but it raises a fundamental doubt about these hearings. In effect, the hearings are a job application too – and if we are supposed to assume that Alito’s words in 1985 were unreliable, why should we trust what he says now?
So as the Kabuki theater continues, with senators congratulating Alito before trying to pose the question that may nudge him onto the road to defeat, we ought to face the fact that we know more about what Alito will do on the court than we have known about any other first-time Supreme Court nominee since Thurgood Marshall, whose record was unequivocally progressive and who never attempted to hide it. Republican Sen. Arlen Specter, the moderate sounding chairman of the Judiciary Committee who always ends up voting with Bush, brought the play-acting to a high (or low) point when he said there were Alito decisions that made the judge look like a flaming liberal. Specter didn’t cite any in his opening statement; if he searches some out, they’ll be few and far between; and seeing them through Specter’s spectacles would require labored explanation and the suspension of common sense. The problem with Alito isn’t that he isn’t a liberal; Sandra Day O’Connor, the justice he hopes to replace, isn’t one either. The problem is that Sam Alito is a very bright ideologue who’s out of the mainstream, and who was picked by the president precisely because he could pass muster with the neo-cons and far right forces that found Harriet Miers insufficiently and unreliably reactionary.
They know, Bush knows and we should all know how Alito will vote on the court if he is confirmed. Ted Kennedy broke the Kabuki mood when he forcefully showed that Alito’s jurisprudence is uniformly hostile to individual rights. Conservative Sen. Lindsay Graham briefly broke the mood too, to comfort the Bush base, when he proclaimed that if he thought Alito wouldn’t listen to arguments for overturning Roe v. Wade, why, Graham wouldn’t vote for him either.
If he makes it to the court, some of Alito’s history is just that: even if he tried, he couldn’t roll back the principle of one person, one vote despite his hostility to it. But much of his past is prologue.
Alito argued adamantly in the 1980s, not as a lawyer acting as an advocate for a client, but as a matter of deep conviction that there was no constitutional basis for a women’s right to chose. California Sen. Dianne Feinstein reported that in a private meeting with her, he had conceded that there was a constitutional right to privacy. Of course, if he had said the opposite, he would have Borked himself again, this time at a decisive moment, and ended up unconfirmable. Alito’s smart enough to profess a faux right to privacy – which, conveniently, won’t happen to encompass choice or the recent Supreme Court decision striking down laws that criminalized the private behavior of gays and lesbians. He won’t tell Feinstein this in her office; he won’t tell the Judiciary Committee or the country during the hearings; he’ll just do it on the court. To credit the opposite conclusion, you have to believe that Alito doesn’t have the integrity of his own fervently asserted constitutional views – in which case, he shouldn’t be confirmed anyway.
The judge is consistent: his record, his statements and his rulings evidence a general hostility to women’s rights, disability rights, civil rights and affirmative action. Line ‘em up – and it’s “Bingo!” for the right wing. Alito belonged to a group that crusaded, sometimes in crude terms, against the admission of women to his alma mater, Princeton. On the Circuit Court, he sided with powerful corporate interests against the claims of consumers and workers. In dissent, he’s voted 84% of the time against individual rights, often while serving on three-judge panels all of whose members were Republicans, appointed by Reagan, Bush I or Bush II. A judge prepared to uphold the strip search of a 10-year-old girl by rogue police has told us more clearly than any of his carefully crafted answers in these hearings that he won’t defend individual liberty on the Supreme Court.
Actually, Samuel Alito is not even a conservative; he’s radical in his unstinting support for Presidential power. In the face of Bush’s imperial Presidency, do we really want a justice who will vote to uphold torture, detention of our own citizens without trial, and unchecked executive branch eavesdropping on Americans, which virtually every authority regards as a violation of the law. This won’t trouble Alito; he’s argued that in signing a law, a President can decide what it means for himself.
Alito appears to be equally cavalier about statements given under oath. He swore, when confirmed for the Circuit Court, not to rule on cases involving Vanguard, because that’s where his money was invested. He broke his word, and the shifting explanations we’ve heard can’t hide the fact that there isn’t one. We’re told, for example, that he did it because of a computer glitch. Computers are fast but stupid mechanical brains. In his own mind, however, had Alito forgotten that his investments were in Vanguard, forgotten his oath to the Judiciary Committee – or just not noticed that Vanguard’s name was all the case that he was ruling on?
The evasions, the bobbing and weaving we’ll witness during the confirmation process, are typical of a Bush-league leadership that has elevated ideology over truth – from Iraq to domestic spying; from a compassionate conservatism that isn’t, to a Supreme Court nominee selected , the President said in the case of Harriet Miers, because she was the best qualified choice in America. Alito is well prepared by the White House operatives who’ve coached him; unlike Bork, I’ll bet he knows how to stick to his script. As he testifies, he’ll approach hot-button issues with a bland and calibrated touch. But whether it’s choice, individual freedom or the abuse of Presidential power, no one has any reason to doubt that he’ll not only sit on the far edge of the Court—he’ll vote there.
Democrats knew this before asking their first questions in the hearings and Alito’s non-answers won’t change it. In the committee, they ought to delay a vote on his nomination – and if they have to, filibuster on the Senate floor. And no one ought to pay attention to the moth-eaten argument that the President’s nominee deserves an up-or-down vote. That’s an argument of convenience depending on who’s in the White House. The Republicans denied a vote to scores of Clinton’s judicial nominees. Alito is an extreme case and an extreme choice; he’s the kind of nominee the filibuster was invented for.
If the Republicans respond with the “nuclear option,” smashing the rights of a minority in the Senate who may in reality speak for a majority of Americans, Democrats still will be better off having done the right thing then letting a right-wine rubber stamp ascend to the Supreme Court. Samuel Alito could have been chosen by a President Pat Buchanan as easily as he was by President George Bush. And in the midst of the Kabuki of these hearings, that’s the essence of what we need to know.
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