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.
TDS Strategy Memos
Latest Research from:
By Ed Kilgore
It’s hard to keep up with the growing evidence of the horrors Trump plans to implement in a second term, but I wrote about one item that really struck me at New York:
There have been many credible reports that a second Trump administration would feature an assault on the federal civil-service system in order to reduce “deep state” resistance to his authoritarian ambitions — or, to use his terms for it, to “drain the swamp” — while stuffing the higher levels of the federal bureaucracy with political appointees. Those of us who are history-minded have immediately thought of this as threatening a return to the “spoils system” of the 19th century, which was more or less ended by enactment of the Pendleton Civil Service Reform Act of 1883 (signed into law by Republican president and reformed spoilsman Chester Alan Arthur).
But the more we know about Team Trump’s plans, this understanding of what they want to do in staffing the federal government looks increasingly inadequate and anachronistic. The spoils-system beneficiaries of the distant past were by and large party foot soldiers rewarded for attending dreary local meetings, talking up the the party’s candidates in newspapers and forums, and, most of all, getting out the vote on Election Day. No one much cared what they believed in their heart of hearts about issues of the day or how they came to their convictions. It was enough that they put on the party yoke and helped pull the bandwagon to victory.
As Axios reports, one questionnaire used late in the first Trump administration to vet job applicants and another distributed by the Heritage Foundation to build up an army of second-term appointment prospects show a far more discriminating approach:
“The 2020 ‘Research Questionnaire,’ which we obtained from a Trump administration alumnus, was used in the administration’s final days — when most moderates and establishment figures had been fired or quit, and loyalists were flexing their muscles. Questions include:
“’What part of Candidate Trump’s campaign message most appealed to you and why?’
“’Briefly describe your political evolution. What thinkers, authors, books, or political leaders influenced you and led you to your current beliefs? What political commentator, thinker or politician best reflects your views?’
“’Have you ever appeared in the media to comment on Candidate Trump, President Trump or other personnel or policies of the Trump Administration?”
Similar questions are being asked for the Talent Database being assembled by the Heritage Foundation’s Project 2025 — the most sophisticated, expensive pre-transition planning ever undertaken for either party.
The Heritage questionnaire makes it especially clear that being just any old kind of Republican isn’t going to be enough. It asks if applicants agree with a number of distinctively MAGA issue positions, including:
“The U.S. should impose tariffs with the goal of bringing back manufacturing jobs, even if these tariffs result in higher consumer prices. …
“The permanent institutions of family and religion are foundational to American freedom and the common good. …
“The President should be able to advance his/her agenda through the bureaucracy without hinderance from unelected federal officials.”
One insider told Axios that both the 2020 Trump and 2024 Heritage questionnaires have a common and very particular purpose:
“An alumnus of the Trump White House told us both documents are designed to test the sincerity of someone’s MAGA credentials and determine ‘when you got red-pilled,’ or became a true believer. ‘They want to see that you’re listening to Tucker, and not pointing to the Reagan revolution or any George W. Bush stuff,’ this person said”.
This represents a really unprecedented effort to place the executive branch under the direction of people chosen not on the basis of merit or experience or expertise, and not on party credentials, but on membership in an ideological faction that is also a presidential candidate’s cult of personality. As such, it’s more dangerous than a return to the partisan habits of a bygone era.