Why Alito hasn’t sparked a national conversation

November 18, 2005

When Harriet Miers withdrew her nomination to the Supreme Court, the right was not only pleased to have vanquished the candidate they disapproved of, but said that a genuinely conservative nominee could finally spark a national discussion about the federal judiciary. It was a conversation they claimed to welcome.

But as Dahlia Lithwick explained, it was a lot easier for conservatives to take this position in the abstract.

This week’s revelation that Judge Samuel Alito is on record, as early as 1985, insisting that he “personally believes very strongly” that there is no constitutional right to abortion should have conservative pundits and thinkers jigging for joy. After all, they claim that they’re dying to have this big, defining, national conversation about the role of judges; about the need to repair the damage wrought by renegade liberal activists who’ve been trampling all over the Constitution for decades. So, here is Sam Alito, unequivocally opening the door to that national conversation with his personal assertion that Roe is bad law.

And what are Alito’s supporters, and Alito himself, doing? Backpedaling so fast, all you can see is the blur of their lost integrity.

Quite right. Alito’s hard-right record, primarily shaped by that infamous 1985 Justice Department memo, proved that the conservative movement got the nominee it wanted. And now that they have him … they’re content to keep pretty quiet about it.

A month ago this week, the National Review’s Ned Rice said, “[L]et’s name someone to the Supreme Court whose nomination is guaranteed to trigger a national conversation on the proper role of the judiciary — it can only help the conservative cause.” If that’s true, why is the right so tepid about this conversation now?

It probably has something to do with the fact that this conversation would likely go badly for them. As Lithwick put it:

Could it be that the national polls — which indicate robust support for Roe and strong opposition to justices who’d reverse it — have rendered this conversation too dangerous? Or is it the prospect of the national backlash that would follow from actually reversing Roe that has rendered you speechless? Aren’t you eager, finally, to defend the GOP platform, which overtly promises that the president will appoint judges who will defend the “sanctity of life” and overturn Roe? Or are your notions of scrupulous judicial purity less compelling in the cold light of political reality?

Come to think of it, it’s probably a combination of all of these.

I hear conservatives complain about the Warren Court, but, exactly what deleterious policies came from them? Desegregating public schools? A guarantee of right to counsel for indigent defendants? Informing people arrested of their Constitutional rights?

If the rights enumerated in the Constitution mean anything, they have to make a practical difference in people’s lives. The Warren Court took that responsibility seriously and made the United States a more just place; it made the Constitution what it is today. Almost without exception, all of the ignominious decisions of the Court were ‘conservative’ ones, e.g., deferring to a state’s ‘right’ to treat people as chattel, while all of the decisions we can be proud of were ‘progressive’ in that they enivisioned ways in which America could be a better place.

  • The case against Alito had taken a turn for the better and toward ideology and his history. That had legs….
    The Republicans effectively put abortion back in place as topic #1

  • I think they’re not talking about this issue because the Republican leadership and the vast majority of right-leaning pundits are pussies. As in cowards. As in morally bankrupt and ideologically-driven wimps. As in Pat Robertson and Jerry Fallwell and Karl Rove and Bill Frist and Tom Delay and Jack Abramoff and Scooter Libby and his spiritual godfather Dick Cheney and Denny Hastert and the rest of those gutless wonders.

    Give me John Kerry and John Murtha any day.

    And while we’re at it, fuck John McCain and his ass-kissing. Yeah, he gave a lot during the war. But in sucking up to Bush over the past four years he’s taken it all back. We’re even, McCain. So piss off.

  • “Could it be that the national polls — which indicate robust support for Roe and strong opposition to justices who’d reverse it — have rendered this conversation too dangerous?”

    What I can’t understand is this. If Roe has the support that is asserted above to wield, then why isn’t it law now? Democrats controlled Congress for over fifteen years after Roe. Republicans have held the House for the last ten. If there is such wide spread support, it would have seemed a simple matter to produce a fdederal law that formally declares a right to an abortion. The bottom line is that there isn’t wide apread support for Roe- its about evenly divided. Lawmakers have avoided the issue like the plague. The key is that the Judiciary can’t step in and do the job of another branch of government. There should have never been a Roe decision at all- for either side. Abortion is a political question, plain and simple, to be answered by Congress or by the states if Congress doesn’t take up the ball.

  • If Roe has the support that is asserted above to wield, then why isn’t it law now?

    Well, F.M., it is the law now. The Supreme Court recognized a constitutional right to an abortion 32 years ago and it’s been the law ever since.

    If there is such wide spread support, it would have seemed a simple matter to produce a fdederal law that formally declares a right to an abortion.

    As a rule, Congress doesn’t pass laws declaring a right that already exists. It’s just redundant. “Here’s a bill to protect a right … that’s already protected.”

    The bottom line is that there isn’t wide apread support for Roe- its about evenly divided.

    Due respect, I don’t that’s at all true. The Pew Research Center just this month asked Americans if they wanted to see Roe overturned. It wasn’t even close — 65% opposed overturning Roe, 26% supported overturning. This is consistent with findings from previous years. (The full .pdf report is available here.)

    It is, however, nevertheless nice to see a force majure comment again. It seems like it’s been a while.

  • Lawmakers have avoided the issue like the plague.

    They have avoided the issue because it’s “settled law” (federally since 1973). Why step on a toe which can kick back painfully if you don’t have to?

    Of course, state sodomy laws were “settled” accoding to Bowers v. Hardwick (1986) but then completely tossed out in Lawrence v. Texas (2003).

    BTW, welcome back, Force.

  • We may not have passed any Federal laws, but many states have been active. Here in Washington (state. Not that other Washington where the nitwits are in charge) we passed an initiative stating, basically, that even if Roe v. Wade is overturned at the Federal level a woman still has the right to choose here in our state. It passed something like 2 to 1.

    Side note: it makes me wonder why Dino Rossi did so well in the governer’s race in 2004. Here’s a guy who stated that one of his goals in running was to overturn that initiative, yet he picked up almost exactly half the votes. That means somewhere on the order of half the people who voted for Rossi did so even though he was on record saying he wanted to overturn an initiative they passed.

  • Death. Simply death.

    From a mathematical model, or a spiritual model, it’s death. The desire is to stop the rotation of the earth, to stop the painful conversation about the human condition, about that which we cannot expect to know.

    It’s enforcement, stopping dissension, stopping, stopping, stopping, stopping the pain that accompanies life. Why would we celebrate life and why would we celebrate its passing if not for the pain?

    Why does the extreme right fight so for power?

    Is it because they fear they cannot survive the loss of the tiniest fragment of power?

    They have not only embraced the politics of smear, they have embraced the politics of holding tightly to everything. They will not only lose all, they already have and are unwilling to admit what is in front of them.

    We are living in interesting times.

    Our challenge is – What do we want – What do we envision?

    That’s next, the brass ring is in our hand.

    Do we recognize that yet?

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