No More Roberts or Alitos?

E.J. Dionne, in a "closing the barn door after the horse has gotten out" column, argues that the Senate should:

Just say no. The Senate's Democratic majority -- joined by all Republicans who purport to be moderate -- must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts. The Senate should refuse even to hold hearings on Bush's next Supreme Court choice, should a vacancy occur, unless the president reaches agreement with the Senate majority on a mutually acceptable list of nominees.

With all due respect to Dionne, that is a fine sentiment and I agree with it, but it does not undo the damage done. When "idiot liberals" like me were urging filibusters of Roberts, and especially, Sam Alito (who unlike Roberts, was not a stealth candidate, anyone who wanted to could see what he would do), we were told to be "realistic" and that Democrats needed to "keep their powder dry." Indeed, the entire fight over the "nuclear option" was made a bad joke by the capitulation of Senate Democrats on Alito.

Too many "reasonable" Democrats, law professors and court watchers (people like Cass Sunstein and Jeffrey Rosen come to mind with all their blather about "minimalism") chose to ignore the obvious. They all wanted to keep their "serious" credentials intact.

It was a moment of complete disconnect at the time and personally, I was despondent at the time that no one seemed to get it.

But the fall of 2005 and January of 2006, when the Democrats "kept their powder dry," will be with us for decades. There is no undoing that. That said, Dionne's admonitions are welcome, if late.

< Late Night: The Shrill Lizard | Supreme Court Changes Mind, Will Hear Two Gitmo Challenges >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Uh oh... (5.00 / 2) (#2)
    by aj12754 on Fri Jun 29, 2007 at 09:28:08 AM EST
    our new and newly radical SC has decided to hear the Guantanamo detainee case -- I've got a sinking feeling in the pit of my stomach.

    Nineteen Dems betrayed every civilized principle (5.00 / 1) (#3)
    by Ellie on Fri Jun 29, 2007 at 09:39:01 AM EST
    Every principled stand the Dems should have on human rights, equality, equity in labor and education, environment and franchise was betrayed in allowing Alito a free pass onto the SCOTUS. Roberts was IMO a borderline judgment call.

    I was disappointed by his unwillingness to supply candid, forthright answers and the WH's usual "dog ate our homework" douchebaggery with their stonewalling, and destruction and loss documentation etc.

    Alito is a religious extremist, and to permit the WH to game the system even more outrageously was unforgivable. I gave the Dems the "dry powder" benefit of the doubt on the Iraq supplemental and other important measures, but I won't forget this:

    Republican senators, aided by 19 Democrats, cleared the path yesterday for Samuel A. Alito Jr. to join the Supreme Court and for President Bush to put his stamp firmly on the nine-member bench. [...] Alito is poised to make a larger impact on the court because he will replace Sandra Day O'Connor, the deciding vote in numerous 5 to 4 decisions over the years. [...] (01/31/06 WaPo Babington)

    An added note about hyphenation (5.00 / 1) (#5)
    by Ellie on Fri Jun 29, 2007 at 09:52:50 AM EST
    I'm amazed that this needs even be addressed, but these are our times:

    The religious makeup of any judiciary or govt body (and candidates for them) shouldn't be an issue except where a candidate has an explicit agenda to use the office for religious activism. Alito and Roberts aren't Catholic in the same way. Critics were attacked for being anti-Catholic, which is crap. The radical right selectively uses extremists both to carry forth their agenda and to act as human shields on the tip of the phalanx. It's an old Roman / fascist tactic in both military and rhetorical strategy that any historian or people who have seen Mad Max the Road Warrior instantly recognize.

    Alito and Scalia actually are radical activist extremists that actuallly DO put religious agenda before office. My family is active in the church. I have immediate family in the clergy and they recognize the two headed scAlito thing for what it is.

    And Thomas joined Opus Dei (none / 0) (#17)
    by lilybart on Fri Jun 29, 2007 at 01:13:12 PM EST
    so now that makes four of them that belong to a secretive religious cult, purported to be violent.

    This court is a disaster, and after seeing Sicko, we are agains seriously considering getting out of this country for the sake of the future or our 5 year old daughter.


    I'm amazed at the illogic... (5.00 / 1) (#16)
    by Dadler on Fri Jun 29, 2007 at 12:43:41 PM EST
    ...of Roberts.  The idiotic, insulting, vaccuous notion that these white kids are equivalent to the black kids in Little Rock in the 50's, dear God, I can only repeat it: this is the same logic David Duke used to "justify" his founding of the National Association for the Advancement of White People.  If the NAACP could exist, certainly the NAAWP could.  Not only the past as fiction, but the present too.  

    The intellect Roberts, and his cohorts, put on display is on the level of a high school sophomore debating student, wearing a fancy suit, speaking with faux but servicable authority, and yet still -- in every idea and word and manner -- completely at the mercy of coddled adolescence and its always infant-sized security blankets of ignorance and prejudice.

    Infuriating and depressing.  And infuriating.

    We made progress on discrimination (none / 0) (#19)
    by lilybart on Fri Jun 29, 2007 at 01:20:14 PM EST
    because we DID discriminate. We had to FORCE companies and schools to take black people (and women) just to get people over the hump and on the road to realizing that people are people, some good some not so good, but race or gender should not keep people out.

    One could make a case that all affirmative action programs are not needed after society makes progress. So if Black people do not face housing discrimination, they can go to any school they want. Robert's reasoning seems wrong, but I wouldn't want my child bussed away from our neighborhood to fulfill a quota.


    nice Dadler (none / 0) (#20)
    by TomK on Fri Jun 29, 2007 at 02:21:04 PM EST
    "The intellect Roberts, and his cohorts, put on display is on the level of a high school sophomore debating student, wearing a fancy suit, speaking with faux but servicable authority, and yet still -- in every idea and word and manner -- completely at the mercy of coddled adolescence and its always infant-sized security blankets of ignorance and prejudice."

    That is maybe the most beautiful thing I've ever read in comments.

    Exactly right on.


    I have a confession (none / 0) (#1)
    by andgarden on Fri Jun 29, 2007 at 08:30:41 AM EST
    When the "gang of 14" agreement was reached, I felt a little relieved. I also thought at the time that Harry Reid played the whole thing pretty well. It now seems obvious to me that the Democrats who joined that group were borderline-traitors. We gave an inch and George Bush got a mile.

    The R side (none / 0) (#12)
    by Zappatero on Fri Jun 29, 2007 at 11:58:52 AM EST
    of the Gang is surely pleased with themselves.

    I hope the D side isn't.


    Why am I not convinced? (none / 0) (#4)
    by joanneleon on Fri Jun 29, 2007 at 09:40:59 AM EST
    The disappointment (understatement) about the Alito confirmation has hardly subsided for me.  And I'm not convinced that this  Senate would do anything differently now.  I wish I felt differently.  I wish they had given me a reason to believe that they would act differently now.

    Yawn (none / 0) (#6)
    by HeadScratcher on Fri Jun 29, 2007 at 10:32:19 AM EST
    This stuff doesn't bother me at all because, like most things in life, things turn around. This is due to an election and if the Dems win then they get to do the same. Losing the last 7 out of 10 elections doesn't bode well for judicial appointments.

    Just be glad Souter (Bush) and Stevens (Ford) didn't turn out to be what they were intended to be otherwise you'd be looking at 7 - 2 rulings all day long.

    Rulings (5.00 / 1) (#8)
    by wlgriffi on Fri Jun 29, 2007 at 11:03:58 AM EST
    "Just be glad Souter (Bush) and Stevens (Ford) didn't turn out to be what they were intended to be otherwise you'd be looking at 7 - 2 rulings all day long." Headscratcher

    As usual your head is in the sand. A 5-4 ruling is as binding as a 7-2 ruling. Your neo-con status-quo attitude is,of course,noted.  


    Well, (none / 0) (#21)
    by HeadScratcher on Fri Jun 29, 2007 at 03:06:59 PM EST
    Occassionally, like yesterday, Kennedy does go the other way. Not to mention the past 15 years of O'Connor being the swing vote. There wouldn't have been a swing vote then...


    An individual and small groups can effect change far greater than some (not all) court cases. Feed the poor, join Habit for Humanity, The Tree People.

    That's why the component of the Supreme Court doesn't bother me too much. I do more to help people every day (I build low income housing and work with various non-profits) than worry about what Gov't can or can't do for people. I'm not saying it's not important, I'm just saying that I can't change it except for one vote every four years so I just go about my business and try to repair the world.


    Right... (none / 0) (#7)
    by aj12754 on Fri Jun 29, 2007 at 10:36:09 AM EST
    It only took 58 years to turn around Plessy v. Ferguson.

    Really, (none / 0) (#22)
    by HeadScratcher on Fri Jun 29, 2007 at 03:07:44 PM EST
    Segregation is legal again?

    Are you (none / 0) (#24)
    by aj12754 on Fri Jun 29, 2007 at 04:14:00 PM EST
    willfully obtuse?

    or (none / 0) (#25)
    by aj12754 on Fri Jun 29, 2007 at 04:14:48 PM EST
    a product of the same legal education that produced Scalito?

    Remember "The Sensible Liberal"? (none / 0) (#9)
    by SeeEmDee on Fri Jun 29, 2007 at 11:34:36 AM EST
    From Tom Tomorrow's site a few years back.

    Such 'sensible liberals' refused to see the danger that these ultra-conservative (translation: neo-con) justices represented: they are little more than political human 'doomsday weapons' meant to function long after the circumstances that led to their installment have passed. They will use their ideological roots to obstruct anything that doesn't adhere to their rather warped beliefs regarding individual rights as opposed to control over those rights by The (Corporate) State...which they have shown a nasty predilection to prefer.

    In 1937, FDR threatened to pack the SC with judges of his own stripe to stop what he saw was the obstructionism of the SC of the day to his legislation. After a game of public relations 'chicken', the SC 'blinked' and capitulated to nearly everything FDR wanted. A future Dem President may have to resort to the same kind of tactics to undermine what is clearly shaping up to be a similar situation.

    filibusters (none / 0) (#10)
    by diogenes on Fri Jun 29, 2007 at 11:45:45 AM EST
    You've just given the Republicans permission to filibuster any liberal nominees put forth by the Democratic president who will be in power for the next eight years.  Shrewd.

    Heh (5.00 / 1) (#11)
    by Big Tent Democrat on Fri Jun 29, 2007 at 11:54:26 AM EST
    Cuz Republicans needed Dem permission.



    Cass Sunstein's comments (none / 0) (#13)
    by Alien Abductee on Fri Jun 29, 2007 at 12:08:40 PM EST
    on the new makeup of the court and what it implies here:

    Here, in a nutshell, is the division between the Court's conservative minimalists and its visionaries. In the context of a particular case, which can be resolved without reference to fundamental principles, Alito (along with Roberts, and also Kennedy) does not question past decisions, avoids the most fundamental disputes, and avoids theoretical ambition. By contrast, Scalia (along with Thomas) is not cautious about objecting to a "chaotic set of precedents" and rethinking them from the ground up. We can see the same disagreements in the many other areas, including abortion and campaign finance, in which Alito and Roberts worked within existing precedent while Scalia and Thomas urged that Roe v. Wade and important campaign finance decisions should be jettisoned immediately....

    It is harder to predict what will happen down the line. Suppose that the continued vitality of Flast v. Cohen or Roe v. Wade is raised in the near future--how will Alito and Roberts proceed in that event? It is clear that the two justices do not like to overrule precedents when it is not necessary to do so in order to resolve the case at hand. What is less clear is how the minimalists will proceed when a case cannot be decided without taking a stand on a precedent that they reject in principle. The minimalists and the visionaries have been able to agree on how to resolve the key cases this term. It remains to be seen if their alliance will fracture when the question of fundamental constitutional change simply cannot be postponed.

    He seems remarkably unperturbed.

    Also (none / 0) (#15)
    by Alien Abductee on Fri Jun 29, 2007 at 12:16:12 PM EST
    have you seen this?

    A TOP-RANKING US judge has stunned a conference of Australian judges and barristers in Chicago by advocating secret trials for terrorists, more surveillance of Muslim populations across North America and an end to counter-terrorism efforts being "hog-tied" by the US constitution.

    Judge Richard Posner, a supposedly liberal-leaning jurist regarded by many as a future US Supreme Court candidate, said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and the US had "over-invested" in them...

    Judge Posner raised the prospect of secret trials as a "tailored regime" to prosecute terrorists in cases where there was a concern about classified information going public.

    More from teacherken at dkos.


    A question (none / 0) (#14)
    by TomK on Fri Jun 29, 2007 at 12:09:43 PM EST
    I remember you writing a lot about this Alito stuff back when he was being confirmed.  

    As a useful service, could you point out who some of the worst people on the democratic side about this were?  I am interested to know who I should be pissed off about.  I know these guys:

    Joe Lieberman, Connecticut
    Robert Byrd, West Virginia
    Ben Nelson, Nebraska
    Mary Landrieu, Louisiana
    Daniel Inouye, Hawaii
    Mark Pryor, Arkansas
    Ken Salazar, Colorado

    gave into the pressure and might as well be republicans for all the good they've done protecting us from reactionary crap like that.  But I wonder if I should be pissed off at more people, like other politicians and pundits?

    I am one of those people that likes to look at what people said, then see how their advice turned out.  It looks like you were right, and so I'm interested in your opinion about who the other bad guys here were.  In particular, who supported the move and now is still blathering on as if their opinion deserved any credibility.

    Also, who else was right on our side?  They deserve our support and recognition for their prescience.  They also deserve our continued attention.

    This court is awful.

    There were two votes... (none / 0) (#18)
    by dkmich on Fri Jun 29, 2007 at 01:17:36 PM EST
    I'm not the best one to answer your question.  The first vote allowed their nominations to be voted on.  Here lots of Dems refused to philibuster.  The second vote was to confirm.  This allowed several Dems (like Hillary and Obama) to vote not and maintain cover.  When dkos was screaming at them to philibuster, Obama even came to dkos and berated the dirty liberals there for being so unreasonable.  Its the jist anyway, but it still doesn't give you names you are looking for.  For me the bottom line is that almost all of the Democrats are corporate owned.  Bernie Sanders is the best.

    Watch the language please (none / 0) (#26)
    by Big Tent Democrat on Fri Jun 29, 2007 at 05:41:30 PM EST

    Shouldn't it be... (none / 0) (#27)
    by Demi Moaned on Fri Jun 29, 2007 at 11:00:04 PM EST
    No more Robertses or Alitos?

    Posner/witness fears (none / 0) (#28)
    by diogenes on Sat Jun 30, 2007 at 08:03:11 AM EST
    You can google "witness fears snag air canada inquiry" about a 1985 bombing.  You can ask witnesses threatened or killed about reporting drug gangs in American cities.  How many of you would testify in open court against an alleged Al Qaida terrorist if, say, you were a tourist in Kabul who witnessed stuff?  Would you still testify if your name was on the pretrial witness list and you got an anonymous death threat?

    If 'Posner/witness fears' was meant to be (none / 0) (#30)
    by Alien Abductee on Sat Jun 30, 2007 at 01:46:45 PM EST
    a response to my comment above, I'm not interested in what rationalizations are used to justify the ongoing demolition of our Constitutional protections. I'd like to understand what's leading these supposedly "liberal" legal thinkers to acceptance of such illiberal conclusions.  Because otherwise they won't be called "serious" by the punditry? More like that's the essence of frivolousness, to betray your principles out of vanity. 'Cause if these ideas are in any way shape or form liberal there is some major disconnect going on.

    Bush is going to leave a bad taste (none / 0) (#29)
    by Militarytracy on Sat Jun 30, 2007 at 01:41:38 PM EST
    in my mouth forever I sometimes think.  Gotta admit that reading this and reliving those two horrible events and reading Mike Stark's talk with Pelosi that is at Orange isn't pleasant today.  The Dem leadership just doesn't get it and they don't stand up to injustice no matter how blatant.