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
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By Ed Kilgore
With the clock running down and real problems emerging on the legislative front, the president is beginning to meet with key congressional Democrats representing different factions. At New York I took a shot at suggesting what he needs to get them to understand:
We have breathlessly been told by all the Beltway insider outlets that Joe Biden has summoned various congressional Democrats to the White House in hopes of saving his 2021 legislative agenda, which is on the brink of disaster thanks to the irreconcilable demands of competing factions. For once, the eternal “Democrats in disarray” narrative is accurate. On September 27, the House is scheduled to vote on the Senate-passed infrastructure bill, a vote rebellious House “centrists” extorted from Speaker Nancy Pelosi in order to get the votes for a must-pass budget resolution. They are quietly backed by rebellious Senate centrists. Multiple House progressives, who have their own cheering gallery in the Senate, are promising to kill the infrastructure bill if it comes up before the fiscal year 2022 budget reconciliation bill is enacted, which won’t happen for weeks. The one sure thing is that if this transpires, House Republicans will make certain there are not enough votes for the bill in their ranks to save it.
This is a BFD!
Biden should find some way to recycle his famous words to Obama about Obamacare.
The success or failure of the governing coalition Democrats managed to secure in 2020 (and in those two crucial Senate runoffs in 2021) is about to be determined by what happens in the next few days and weeks. If they fail, there will be no tomorrow, no Plan B. Next year will be a lot like 2010, when Democrats lost the ability to pass legislation against Republican obstruction and then got clobbered at the polls. It took them eight years to recover from that debacle. Another one could be staring them in the face.
Biden remembers that, and so do many Hill veterans. He needs to impress on them that this is no time to listen to hammerheaded pollsters or greedy donors or Twitter activists. Like it or not, Biden has defined the paired infrastructure and reconciliation bills as central to his presidential legacy and to his party’s case for maintaining power. He needs to make every Democrat tempted to sabotage either bill feel that his failure would be theirs as well, whether or not they lose their own seats in 2022, which some undoubtedly will if the Biden agenda implodes.
The posturing needs to stop
Obviously, the president must acknowledge and show respect for the fact that legitimate differences of opinion exist in his big-tent party. But lawmakers posturing and grandstanding in order to get a shout-out at Politico as big-time wheeler-dealers are not legitimate or worthy of respect. Biden needs to challenge congressional Democrats very directly on this: Let’s go a week without any name other than mine and Nancy’s and Chuck’s appearing in the national political media. If they are questioned about intra-Democratic negotiations, they should refuse comment, go vague, or say “watch and learn.”
Why is this important? Because the centrist-progressive (and on some issues House-Senate) dynamics are reciprocal and virtually guarantee escalation. A ceasefire in factional hostilities requires some peace and quiet.
Public demands, threats, and hostage taking must end instantly
Whether it’s centrists placing some arbitrary “cap” on the size of a reconciliation bill they can accept or progressives making their votes for reconciliation contingent on inclusion of this or that priority, the proliferation of absolute and totally irreconcilable demands is what has really brought congressional Democrats to the brink of disaster.
Biden needs to show Democrats he understands how and why this is happening: It’s mostly the result of the extremely small margin of control in both Houses — which in fact, objectively speaking, gives every senator and every group of a few House members the power to destroy their party’s agenda. In the past, if that had happened, leaders might have been able to offset intraparty hostage taking by securing votes from the opposition. That’s just not practicable in the current environment. Even on the so-called bipartisan infrastructure bill, Republicans are now making it clear they would love to see it go down to defeat and will work to produce that outcome.
But while expressing empathy for the temptations facing individual members, Biden has to insist that the public demands and threats stop right now and promise with whatever cold anger he can muster that there will be real consequences for those who go rogue at this sensitive moment. Successfully negotiating the size and shape of the reconciliation bill, for example, is going to be excruciatingly hard if the landscape is constantly shifting because Problem-Solver X or Progressive Caucus Y has laid down some personal marker through a press release or a staff leak.
There’s one plan, and we’re all sticking to it
With the clock running down on the endgame for the 2021 legislative saga, Biden and his closest congressional allies really need to adopt a strategy and demand universal support for it right now, even if that means some backtracking by congressional factions. If the infrastructure bill is going to be salvaged, Biden has to bluntly tell progressives the days of “linkage” between reconciliation and infrastructure are now over: The infrastructure bill will be on the House floor next week and it has to pass. But at the same time, Biden needs to tell centrists that while he and Pelosi and Schumer will listen to everyone’s point of view on reconciliation, he needs commitments of support now for the final product, and to threaten permanent ostracism by the entire federal government (within the limits of the law) for anyone who refuses to comply.
In asking Democratic factions and individual members to give up their leverage over one another, Biden will supply his own leverage to keep the party united. It’s probably the only thing, at this point, that will work. And what does the president have to lose in making some exceptional promises and threats of his own? He’s a 78-year-old man who has spent nearly a half-century putting himself in the position to enact the kind of legislative package that is at stake right now. If he loses it, his presidency will at best be hollow and short, and his party will go into the wilderness. Only he can stop that from happening.