Extraordinary Circumstances Indeed
January 4, 2005
By Paul Rogat Loeb
the "nuclear option" compromise? When the group of 14 senators reached
their agreement last May, they said they'd support a filibuster
of Bush's judicial nominees only under "extraordinary circumstances"
- presumably if he nominated Attila the Hun.
I'd suggest these "extraordinary circumstances apply"
not only to Samuel Alito's track record but also to his nomination's
entire political context.
In threatening to end the Senate's ability to filibuster judges,
Republican leaders talk much about high principle, the right of
presidents to have their nominees accepted or rejected without parliamentary
obstructions. But the sole principle behind this proposed change
is that of the power grab. The Republicans control the White House
and Senate. They're attempting to consolidate control in every way
they can, including trying to obliterate 200 years of Senate tradition
on the filibuster.
This threat isn't a moral stand: Republicans have filibustered
nominees themselves. It's just one more in series of attacks on
individuals and institutions that they've viewed as political obstacles,
like Tom DeLay's mid-census gerrymandering, the leaking of Valerie
Plame's identity, the jamming of Democratic phone banks, and the
branding of political opponents as unpatriotic.
Honorable conservatives used to warn against the raw power of
the state. But the love of power has now become the political right's
prime gospel, making the slightest notion of checks or balances
heretical treason. Republican leaders work to end the filibuster
not because they believe it violates some deep constitutional mandate,
but because they believe they can get away with it.
But maybe they can't anymore. When Republicans first floated the
"nuclear option" threat in early 2005, Bush's polling numbers were
as high as 57 percent. His support has dropped steadily since, in
the wake of the Katrina disaster, the legal problems of DeLay, Bill
Frist, Karl Rove, Scooter Libby, and Duke Cunningham, and an Iraqi
quagmire that's inspired powerful challenges by Cindy Sheehan and
Congressman John Murtha. Republicans have lost key electoral battles
in Virginia, New Jersey and California. Bush's polls have dropped
as low as 37 percent. With once-solid Republican Senate and House
seats now seemingly vulnerable, those who vote to eliminate the
filibuster and confirm Alito will be taking far more of a political
risk than they would have just a year ago.
Were Alito a reasonable Supreme Court choice, all this would be
moot. But he isn't. He'll follow the script and evade specifics
at his confirmation hearings, but he's still the candidate nominated
to appease the political right because they deemed Harriet Miers
Consistently opposing the federal government's right to address
corporate abuses, Alito has argued for virtually unlimited executive
power, including the government's right to intervene in the most
intimate realms of personal life. He's endorsed the rights of police
to shoot an unarmed 15-year-old who was fleeing after breaking into
a house, defended the refusal of state employers to pay damages
for violating the Family and Medical Leave Act, and said it created
no undue burden if husbands could prevent their wives from getting
Citizen groups, he's ruled, have no standing to sue convicted polluters
under the Clean Water Act. The federal government, he's argued,
has no right to pass national consumer protection legislation aimed
at preventing odometer fraud or banning the sales of machine guns.
Regarding the exclusion of blacks from juries in death penalty cases,
he's called the statistical evidence as inconsequential as the disproportionate
number of recent U.S. presidents who've been left-handed. In one
case, Alito's Third Circuit colleagues said the federal law prohibiting
employment discrimination "would be eviscerated if our analysis
were to halt where [Judge Alito] suggests."
Alito now downplays his membership in a Princeton alumni group
so hostile to the admission of women and minorities that even Senate
Majority Leader Frist condemned it. He dismisses as mere job-seeking
his declarations, while applying to the Reagan-era Justice Department,
that the Constitution does not protect a woman's right to choose
an abortion, and that he disagreed with the Warren Court rulings
that desegregated schools and expanded voting rights. He's trying
to dismiss the memo he wrote after getting the job, embracing
the "goals of bringing about the eventual overturning of Roe v.
Wade." He also minimizes the breaking of his pledge to recuse himself
from cases involving his sister's law firm.
It's precisely because Alito's presence on the Court is so potentially
damaging that Democrats and moderate Republicans have a responsibility
to challenge his nomination through every possible mechanism, including
the filibuster. Republican leaders who try to eliminate it as a
political option need to be branded, along with every Senator who
supports them, as embodying politics that believes in nothing except
its own right to power.
With Roberts, Senators could say they were replacing the equally
conservative William Rehnquist. To support Alito, we need to make
clear, is to alter the balance on the Court radically for the most
dubious of political ends. It does no good to reserve the right
to filibuster in theory. If our Senators aren't willing to risk
using it in a situation this exceptional, it becomes practically
Senators accept a president's court nominations for three reasons:
they respect the perspectives of their nominees; they believe a
president should have the right to choose whomever they please as
America's legitimately elected leader; or they fear the president's
political power. But this administration has no moral standing to
which Senators should automatically defer. Bush gained the presidency
through the extraordinary interventions of his brother Jeb and the
existing Supreme Court. He was reelected based on lies about Iraqi
weapons of mass destruction, ties between Saddam Hussein and Al
Qaida, John Kerry's war record, and the true costs of his tax cut
and prescription drug plans. And through Ohio Secretary of State
Ken Blackwell's elimination of 300,000 overwhelmingly Democratic
voters from the Ohio rolls and the withholding of voting machines
from key Democratic precincts.
My friend Egil Krogh, who worked in the Nixon administration, hired
G. Gordon Liddy, and went to prison for Watergate, told the sentencing
judge that he and his colleagues had "almost destroyed democracy."
The Bush people, he said to me recently, "are even more ruthless."
Alito's nomination embodies that ruthlessness. If confirmed, his
track record suggests he'd support the Republican consolidation
of power at every opportunity. But maybe the capacity of that power
to intimidate is finally beginning to wane. If the Senate can find
the courage to block Alito's confirmation, they will draw a critical
line on a choice whose effects could echo for the next forty years.
They need to recognize the high stakes and extraordinary circumstances
of our time.
Paul Rogat Loeb is the author of The Impossible Will Take
a Little While: A Citizen's Guide to Hope in a Time of Fear,
named the #3 political book of 2004 by the History Channel and the
American Book Association, and winner of the Nautilus Award for
best social change book of the year. His previous books include
Soul of a Citizen: Living With Conviction in a Cynical Time.
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