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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Editor’s Corner
By Ed Kilgore
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August 10: Will the Congressional Legislative Blitz Help Democrats in November?
After a sudden period of long-stalled legislative activity, I took a look for New York at the possible midterm election payoff:
Not that very long ago, Joe Biden’s job-approval rating seemed chronically and endlessly depressed; the Democratic-controlled Congress couldn’t get anything done; and all the indicators for the 2022 midterm elections looked terrible for the party, in part because its own voters were deeply disappointed with the lack of legislative productivity and a perceived absence of presidential leadership.
Now, in a series of legislative victories highlighted by the Schumer-Manchin budget-reconciliation agreement (now known as the Inflation Reduction Act, or IRA), Senate Democrats are suddenly walking tall, as Punchbowl News noted:
“Senate Democrats have put together an impressive resume this summer, most especially during the last two months. The CHIPS Plus Act, PACT Act, Sweden and Finland’s accession to NATO, gun control and reconciliation were all passed in this period, a number of them with big bipartisan majorities. All in a 50-50 Senate.”
Assuming the House finishes action on the IRA later this week, it’s quite the late-innings home run, complete with a rebranded title that shows Democrats at least trying to address what has been the dominant issue of the midterms: inflation. Along with the Kansas abortion-rights referendum on August 2 that shows that Democrats may have an issue of competing significance to both swing and base voters, the landscape is most definitely getting brighter for Democrats. And though Biden and his party probably had little to do with it, they will get credit for falling gasoline prices if they continue to drop.
In an interview with Politico, Biden’s pollster John Anzalone used a gambling analogy for the turnaround. “We put our last silver dollar in our slot machine and came up big,” he said. “And they were sitting there with a stack of chips and are down to just one. The turnaround is unbelievable.”
Spin aside, things are clearly looking better for Democrats, but the question (other than uncertainty over the future direction of crucial economic indicators) is whether midterm losses are already baked into the cake. After all, with the exception of George W. Bush in the immediate wake of 9/11, every president going back to the 1930s has lost ground in his first-term midterm election. Even very small House and Senate net losses would flip control to Republicans. And while a yearlong downward drift in Biden’s job-approval rating has now been replaced with small gains, it’s still dreadful at the moment: 39.6 percent in the averages at both FiveThirtyEight and RealClearPolitics. At this point in 2018, Donald Trump’s RCP job-approval average was 43.4 percent, and his party was on the way to losing 41 House seats. Then, too, the “direction of the country” right-track, wrong-track ratio was 41-51. Now it’s 20-73.
Sure, Democratic base voters unhappy with earlier legislative misfires may now have a sunnier outlook on the party’s congressional candidates. That, along with the growing anger at conservative Supreme Court justices and anti-abortion Republican state officials, could certainly improve Democratic turnout. But Republicans will likely retain an advantage of core swing-voter concerns that are unlikely to go away by November 8, as Senator Marco Rubio suggested in a taunting floor speech on the IRA over the weekend:
“There isn’t a single thing in this bill that helps working people lower the prices of groceries, or the price of gasoline, or the price of housing, or the price of clothing. There isn’t a single thing in this bill that’s gonna keep criminals in jail. There isn’t a single thing in this bill that’s going to secure our border. Those happen to be things that working people in this country care about.”
That too is spin, of course, but the point is that GOP talking points really don’t have to change in light of the IRA’s passage.
The best empirical news for Democrats is the trajectory of the congressional generic ballot, the midterm indicator that has had the most predictive value in the past. As recently as June 13, Republicans had a 3.5 percent advantage in the RCP averages for this measurement of congressional voting preferences, with the expectation that the margin would widen as voting grew near. Now the generic ballot is basically tied (Republicans: 44.7 percent, Democrats: 44.6 percent). Historically, the party controlling the White House loses steam late in the midterm cycle, but at the moment, Biden’s party does seem to have some momentum. And in the national contest where Democrats have most reason to be optimistic, the battle for control of the Senate, Republicans continue to suffer from candidate-quality problems that could lose them seats they probably should win in a midterm. John Fetterman keeps maintaining a solid lead over Mehmet Oz in Pennsylvania; this race is for a seat currently held by the GOP. And in Georgia, Raphael Warnock continues to run comfortably ahead of Herschel Walker even before the frequently tongue-tied former football great reluctantly faces the highly eloquent incumbent Democrat in debates.
There is no way to know, much less factor in, late-breaking real-world developments that might affect the trajectory of these and other midterm contests, whether it’s unexpected economic news, a change of direction in the Russia-Ukraine war, or an official 2024 candidacy announcement by Trump that reminds Democrats that the wolf is still at the door. Typically, voting preferences form well before Election Day, and early voting will begin in September in some states. At present, FiveThirtyEight gives Republicans an 80 percent probability of controlling the House next year and Democrats a 59 percent chance of holding the Senate. These numbers are better for Democrats than those we saw in June and July, and that’s grounds for gratitude.