When Robert Bork was nominated for the Supreme Court, he made things pretty easy. Before becoming a nominee, Bork said all manner of bizarre and scary things. As a nominee, he tried to justify all of them, as anyone with confidence in his or her beliefs might. So, when Ted Kennedy noted, for example, that Bork supported a law that imposed a poll tax on voters, Bork acknowledged his position and said, “It was only $1.50.”
Of course, this strategy — which I’m inclined to call the “let me explain my insanity” defense — didn’t work out too well for Bork, and subsequent nominees have learned not to give a lot of rope to a room full of people anxious to hang you. But like Kevin Drum, I’m left with the frustrating feeling that Samuel Alito is keeping all the best rope to himself.
Is Alito fudging furiously? Probably. But it still doesn’t give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. So what’s the battle cry?
I appreciate that there’s some debate among progressive blog writers about whether to fight like there’s no tomorrow or concede that we’re just not going to win this one because the votes just aren’t there. I’m inclined towards the prior because I genuinely believe that Alito will be a disaster on everything I care about.
But Alito isn’t an idiot and knows what not to say. If you haven’t been watching/listening, take a look at the (partial) transcript. Alito expressed tacit support for a right to privacy and the principle of one-person/one-vote. When asked about his description of the “supremacy” of presidential power, Alito backpedaled and said his choice of words was “inapt,” added that the executive should “absolutely not” have “unchecked authority.” Confronted with his membership in the Concerned Alumni of Princeton, Alito didn’t remember joining and disavowed the group’s agenda.
But, you say, none of these responses were true and Alito is only saying what he has to say in order to get through the hearings. Of course he is. The problem is how to fight a nominee — possibly with a filibuster — who’s steering clear of Bork-like lunacy. Dems went into the hearings vowing to challenge the nomination based on Alito’s responses to questions, as if to say, “We’ll look for the rope in his responses.” Surprise, surprise, Alito isn’t playing along.
Alito deserves to be defeated; I’m open to suggestion as to how to make that happen.