The twin obsessions in Washington right now about Iraq and the continuing pandemic of GOP scandals have obscured the once and future obsession of George W. Bush’s efforts to reshape the Supreme Court. To be sure, Samuel Alito’s nomination has yet to undergo Senate Judiciary Committee hearings, which is why few senators from either party have taken definitive positions. But as Ryan Lizza points out on The New Republic‘s site today, the gradual build-up of evidence about Alito’s strong antagonism to Roe v. Wade is taxing the abilities of administration spinmeisters who want to keep this nomination in The Roberts Zone.Like a lot of observers, I’ve long felt Alito’s prospects for a relatively easy confirmation depended on whether he is perceived as another Scalia (scary conservative judicial activist) or as another Roberts (reassuring conservative judicial incrementalist). His handlers have done a pretty good job of keeping the dial turned towards the Roberts model, mainly by stressing his calm temperament and geniality; I guess the planted axiom is that Nice Guys Don’t Overturn Abortion Rights.But as Lizza notes, Alito’s growing paper trail of outspoken hostility to Roe, and especially the internal memo he wrote his colleagues at the Justice Department laying out a stealth strategy for ridding the Constitution of abortion rights, are stepping on his current message. And the rejoinder that Alito’s appeals court decisions upholding Roe as precedent show his deep respect for stare decisis is, as Lizza also notes, a crock: lower courts do not have the option of overturning Supreme Court decisions, but Supreme Courts most definitely do.Thus, even as Washington and the whole political world look elsewhere, the probability that the Alito nomination will hang fire is slowly growing. And after the Miers fiasco, accompanied by a growing sense among conservatives that time’s beginning to run out on their tainted ascendancy, Alito’s handlers may not have the wiggle room to make too many dubious assurances that the putative justice might well turn out to be a vote to sustain Roe. Another nice feature of Lizza’s analysis is that he shares my redundantly expressed view that any judicial, much less cultural, conservative reflexively thinks of Roe as the mother of all abominations. There’s absolutely no reason to think Samuel Alito thinks otherwise, and a lot of evidence to suggest his views on Roe are exactly what you’d expect.Now, there are two arguments you often hear in Democratic circles on this subject that sound initially plausible but which, in my opinion, are dangerously off-course. The first is that Republicans actually don’t want to overturn Roe because it would produce a political backlash once state legislatures and governors had to actually decide whether to support or repeal basic abortion rights. The second is that Democrats should smile upon a reversal of Roe, for the same reasons.The first argument, even if you buy it, suggests that Republican politicians can perpetually keep cultural conservatives running around the political track like greyhounds chasing a rabbit that can never be caught. Sure, some GOP pols may hope that’s true, but now, at the moment the Right has prayed and dreamed about for a generation, I just don’t think Republican cynicism on abortion will be allowed to prevailAnd the second argument, while defensible in theory, just doesn’t make any sense in the real world. Whatever you think of the constitutional provenance of Roe, the idea that a post-Roe world would somehow entail a sort of national referendum on basic abortion rights, with a dignified debate and simple up-or-down votes in every state, defies everything we know about the politics of abortion and the nature of state legislatures. The reality is that the reversal of Roe would turn state politics across the country into an endless, 24/7 battleground over a vast array of abortion legislation, perhaps indefinitely. At worst, it could produce the kind of reasoned debate associated with the Schiavo case, every single day, across the country. At best, abortion policy would overshadow many compelling issues most of the time, and some compelling issues all of the time.So you don’t have to be an abortion rights ultra to shudder at the prospect of Roe‘s reversal. Yet Alito’s confirmation will likely bring us face-to-face with that contingency.If the genial Jersey judge conducts a pitch-perfect balancing act in the Judiciary hearings, maybe none of this will matter. And even if he doesn’t, Senate Democrats obviously don’t have the votes to block him, and face an agonizing decision about using a filibuster weapon thatwill likely be snatched away from them immediately–and permanently–through the invocation of the Nuclear Option.But no matter what happens next, Alito is probably not going to be confirmed without serious controversy, and is probably going to face a fight. And the fight will likely, and naturally, wind up revolving around the constitutional status of abortion, which much as we might wish otherwise, is truly hanging in the balance, if not right now, then in a future so near that we should all soberly consider its baleful nature–terrible for women, and bad for democracy.
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By Ed Kilgore
Waiting for Joe Biden’s speech to a joint session of Congress to begin this week, I observed at New York that Republicans were struggling to define him consistently, which felt like a familiar problem for them:
When Bill Clinton was at the pre-Lewinsky peak of his powers, he drove Republicans nuts. They alternated between accusing him of “stealing our issues” with his triangulating pitches on welfare reform and crime and the size of government, and of being “liberal, liberal, liberal!” — a sort of boomer love child of George McGovern and Janis Joplin in a deceptive deep-fried southern packaging. Eventually the opportunity to depict him as a lying sexual predator solved the conservative dilemma, though you could argue he never stopped throwing them off-balance.
Republicans are similarly having problems getting a clear focus on Joe Biden, as the Los Angeles Times’ Noah Bierman observes:
“Alex Conant, a Republican consultant who has advised Sen. Marco Rubio of Florida, [says] that his party’s two main messages about Biden are at odds with each other, blunting their impact. ‘The thing you hear Republicans say most is that he’s too old for the job, which isn’t consistent with saying he’s doing too much,’ Conant said. ‘You can’t effectively argue that he’s incompetent and that he’s too effective.'”
This dual framing of Biden was evident during the 2020 campaign, when Trump called him “Sleepy Joe” and with his usual lack of subtlety suggested his opponent was senile, even as he assailed Biden’s party of radical socialist aims. The 45th president and his surrogates squared the circle by treating Biden as the half-there puppet of the real powers, particularly the “communist” Kamala Harris.
But now, 100 days into the Biden-Harris administration, even though the new president has kept an unusually low profile, there are no signs of Harris or anyone else manipulating him. Indeed, so far his White House has been remarkably free of the factionalism that often undermines clear presidential leadership. With Clinton as president you had a White House staff famously divided (ironically, given the later reputations of the First Lady and the veep) into progressive “Rodhams” and centrist “Gores” who jockeyed for position and placed their varying stamps on administration policies. George W. Bush’s presidency was also marked by competing power centers (e.g., his terrifying vice-president and the “Boy Genius” Karl Rove); to a lesser extent, so was Obama’s. As for Donald Trump, hardly a week passed without someone — particularly his rotating cast of chiefs-of-staff — being described by “insiders” as the real power behind the throne or perhaps as the wild man’s lion-tamer.
Trump, of course, created some of the same problems for Democrats that Clinton — and now Biden — posed for Republicans. Was he the “toddler president” who ran a hollowed-out administration with no real core of convictions or goals? Or was he a putative Il Duce craftily planning an authoritarian takeover of the country? Up until the day he left office there was evidence for both descriptions. Indeed, the coda of his presidency, the January 6 Capitol riot, was variously regarded as a fascist coup attempt and a clown show.
Trump’s successor will have an opportunity in his first address to a joint session of Congress to add to the impression that he is quietly but firmly in charge of the executive branch, and has imposed order on his fractious party as he unveils yet another massive proposal. Kamala Harris will be sitting (and often standing and applauding) behind him, likely looking more like an adoring protégée than any sort of puppet-master. But if he stumbles at all, or looks tired, or says things that supposedly centrist Democrats like him don’t believe, the knees of many elephants will jerk and out will come the mockery of the old man who is a reassuring front for the Marxists actually running the country.
Such confusion if it continues will be of great service to Biden, much like the current Republican tendency to focus on irrelevant culture-war themes while a mostly united Democratic Party enacts legislative initiatives of a magnitude we haven’t seen since Ronald Reagan’s first year in office. For all their political gifts, Bill Clinton and Barack Obama — who, lest we forget, both had a much more firmly Democratic Senate and House the first two years of their presidencies — couldn’t come close to the mastery of Congress Biden has exhibited up until now. As Republicans watch Biden’s speech, they should soberly realize that before long it may not matter that much if they bust up the Democratic trifecta in 2022. The damage to GOP policies and priorities wrought by “Uncle Joe” and his “senile socialist regime” could be too large to reverse by then. While Republicans fret about Trump and rage about “cancel culture,” Biden is eating their lunch.