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
Amidst all the Republican attacks on voting by mail, something else was going on, which I wrote about at New York:
Republican state legislatures across the country recently launched efforts to restricting voting by mail in myriad ways. It’s generally understood that they are reacting to Donald Trump’s bizarre but incessant claims that massive fraud associated with expanded mail ballots in 2020 robbed him of a “landslide” victory. That’s not, however, the only voter-suppression measures the GOP is pursuing in states where they control both the executive and legislative branches of government. They are also returning to their pre-2020 agenda of restricting in-person voting in ways that disproportionately affect Democratic-leaning constituencies.
That’s most evident in Georgia, where GOP legislators are considering crackdowns on early in-person voting, restricting weekend voting opportunities, banning mobile polling places, and invalidating provisional ballots cast in the wrong precinct. But it’s popped up also in Iowa, where Republicans have sent their GOP governor a bill cutting back on early voting and even closing the polls earlier on Election Day (Democrats traditionally vote later in the day than Republicans).In both states, of course, these attacks on in-person voting are being combined with restrictions on voting by mail; one of the bills in Georgia would eliminate no-excuse absentee ballots — in effect since Republicans introduced it in 2005 — altogether. But there’s clearly a bait and switch going on, in which general-purpose attacks on the franchise, and particularly voting practices thought to benefit Democrats, are being hustled through even though they have nothing to do with the widespread Trumpian claims that liberalized voting by mail is a threat to election integrity.
This reality creates a bit of a strategic problem for Democrats. Should they expend their energy defending expanded (or even universal) voting-by-mail opportunities to the last ditch just because Trump chose to demonize the practice in one election cycle? In the past, after all, voting by mail was actually thought to favor Republicans in many states. Emory political scientist Alan Abramowitz has just published an analysis concluding that expanded voting by mail didn’t have much to do with Joe Biden’s victory, even in the pandemic-distorted atmosphere of 2020.
Certainly in many parts of the country — including Georgia — early in-person voting has been the favorite balloting method for Democratic-leaning minority voters. It was no accident that an early version of one of the Georgia bills banned in-person voting on Sundays altogether, which was a direct attack on “Souls to the Polls” — post-worship-service voter-mobilization drives undertaken by many Black churches (the provision was struck, as it sounds both racist and anti-religious, though it was replaced with restrictions on how many weekend days were available for early in-person voting).
We’ll never know why Trump spent so much time attacking voting by mail in 2020, absent any clear evidence it would benefit his opponent. My own guess is that all along he contemplated the “red mirage” strategy of claiming victory based on early returns and either stopping or delegitimizing mail ballots counted later — a strategy that depended on convincing his own supporters to vote in person, which they obediently did, relatively speaking. That he failed to competently pull it off is no evidence that this was not the plan. But in any event, absent an extended or future pandemic, unrestricted or positively encouraged voting by mail may not be as fundamentally essential to voting rights as it appeared to be when Trump and his allies were assailing it every day. At a minimum, voting-rights advocates should be vigilant about a return to systemic voter suppression aimed at other — or all — methods of balloting.