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:
Editor’s Corner
By Ed Kilgore
-
April 17: A Closer Look at the “Uniparty” Fable
RFK Jr. and MTG are using the same dismissive term for major-party differences. I took at look at this phenomenon at New York:
Partisan polarization has been steadily growing in the U.S. since roughly the 1960s. Ironically, during this time, the complaint that the two parties are actually too alike has become increasingly prevalent. For years, right-wing Republicans have called people in the GOP who don’t share their exact degree of ideological extremism RINOs, or “Republicans in name only,” suggesting they’re basically Democrats. Left-wing Democrats occasionally echo these epithets by calling (relative) moderates “DINOs,” “ConservaDems,” or — back when maximum resistance to George W. Bush was de rigueur — “Vichy Democrats.”
Today the term “Uniparty” has come to denote the idea that Democrats and Republicans are actually working for the same evil Establishment enterprise, their loudly proclaimed differences being a mere sham. This contention was the culmination of a five-page letter Marjorie Taylor Greene recently sent her Republican colleagues calling for House Speaker Mike Johnson’s removal, unless he changes his ways instantly. She wrote:
“With so much at stake for our future and the future of our children, I will not tolerate this type of ‘leadership.’ This has been a complete and total surrender to, if not complete and total lockstep with, the Democrats’ agenda that has angered our Republican base so much and given them very little reason to vote for a Republican House majority …
“If these actions by the leaders of our conference continue, then we are not a Republican party – we are a Uniparty that is hell-bent on remaining on the path of self-inflicted destruction.”
Independent presidential candidate Robert F. Kennedy Jr. also leaned heavily into the Uniparty idea in his recent speech introducing running-mate Nicole Shanahan:
“Our independent run for the presidency is finally going to bring down the Democrat and Republican duopoly that gave us ruinous debt, chronic disease, endless wars, lockdowns, mandates, agency capture, and censorship. This is the same Trump/Biden Uniparty that has captured and appropriated our democracy and turned it over to Blackrock, State Street, Vanguard, and their other corporate donors. Nicole Shanahan will help me rally support for our revolution against Uniparty rule from both ends of the traditional Right vs. Left political spectrum.”
The Uniparty claim is ridiculous, of course, as FiveThirtyEight’s Geoffrey Skelley demonstrates:
“[O]ur current political moment is arguably farther away from having anything resembling a uniparty than at any other time in modern U.S. history. Based on their voting records, Democratic and Republican members of Congress have become increasingly polarized, and both the more moderate and more conservative wings of the congressional GOP have moved to the right at similar rates. Meanwhile, polling suggests that Americans now are more likely to view the parties as distinct from one another than in the past, an indication that the public broadly doesn’t see a uniparty in Washington. Although there are areas where the parties are less divided, the broader uniparty claim is at odds with our highly polarized and divided political era.”
Kennedy’s subscription to the Uniparty notion is understandable on two points. The first is that his candidacy is vastly more likely to tilt the 2024 presidential campaign in the direction of one of the two major-party candidates (likely Donald Trump, according to most of the polling) than to actually succeed in winning the presidency. Maintaining that it really doesn’t matter whether it’s Biden or Trump running the country is essential to maintaining RFK’s appeal as November approaches and the futility of his bid becomes clearer. Second, Kennedy’s pervasive conspiracy-theory approach to contemporary life lends itself to the argument that the apparent gulf between the two major parties is a ruse disguising a sinister common purpose.
MTG’s Uniparty contention also reflects dual motives. In part she is simply echoing Trump’s weird but useful contention that he’s an “outsider” battling a Deep-State Establishment that secretly controls both parties, which is pretty rich since he dominates the GOP like Genghis Khan dominated the Golden Horde. But there is a marginally more legitimate sense in which key elements of the two parties really are in line with each other on isolated issues that happen to obsess Greene, such as aid to Ukraine. If you are a hammer, as the saying goes, everything looks like a nail.
The same is true of other implicit Uniparty claims, particularly those made by progressive pro-Palestinian protesters who adamantly argue that the need to smite “Genocide Joe” Biden for his pro-Israel policies outweighs all the reasons it might be a bad idea to help Trump return to the White House (including the fact that Trump is palpably indifferent to Palestinian suffering). If the two parties do not appear to differ on your overriding issue, then the fundamental reality of polarization can fade into irrelevance.
So we’re likely to hear more Uniparty talk even as Democrats and Republicans head toward another highly fractious election with very high stakes attributable to their differences.