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
I read a Thomas Friedman column this week that really required a smackdown. So I supplied one at New York:
How much political capital should Democrats invest in a probably doomed effort to save the political career of Liz Cheney? Earlier this week, Never Trump Republican Linda Chavez penned a column urging Wyoming Democrats to take a dive this November in order to give the incumbent a chance to survive as an independent, assuming (as it safe) that Cheney will be purged in her own party’s primary. And now, in an apparent coincidence, in comes New York Times columnist Thomas Friedman suggesting a far more radical step by Democrats to align themselves with the small slice of Republicans who follow Cheney’s example in repudiating Donald Trump. He wrote:
“Is that what America needs in 2024 — a ticket of Joe Biden and Liz Cheney? Or Joe Biden and Lisa Murkowski, or Kamala Harris and Mitt Romney, or Stacey Abrams and Liz Cheney, or Amy Klobuchar and Liz Cheney? Or any other such combination.”
Friedman phrases this as a question, but clearly he thinks it’s a good idea given the “existential moment” America would face if Trump is allowed to regain the presidency in 2024. It’s a bit of a loaded question, too, since it postulates that nothing short of a previously unimaginable “sacrifice” by Democrats and Never Trump Republicans alike can stop Trump — and that it would, in fact, succeed in stopping Trump.
I certainly agree that Democrats dumping Kamala Harris to give their vice-presidential nomination to a conservative Republican who opposes legalized abortion and is a militarist by conviction and heredity would be a “sacrifice,” to put it very mildly. It would also be very, very weird. Friedman cites the recent establishment of a mind-bending coalition government in Israel to thwart Bibi Netanyahu as a development comparable to what he is suggesting. But as he acknowledges, Israel has a parliamentary system in which multiparty coalitions are the rule rather than the exception. A presidential system in which parties invariably run separate tickets for the top job is another thing altogether.
The U.S. has had exactly one example of multiparty fusionism in a presidential election. In 1864, in the midst of the Civil War, Republicans nominated Democrat Andrew Johnson of Tennessee — then serving as U.S. military governor of Tennessee — to run with Lincoln on a “Union” ticket. The experiment did not turn out well, beginning with Johnson’s drunken inaugural address in 1865 and continuing with the racist solidarity he exhibited toward ex-Confederates after Lincoln’s assassination, culminating in his impeachment and near removal from office. There are important reasons politicians sort themselves out into major parties, which should be apparent in an era of polarization over issues other than the scofflaw behavior of Donald Trump.
Is the threat of Trump’s return to the White House the equivalent of the U.S. Civil War? Not in itself, I would contend, though that horrific development could lead eventually to grave conditions comparable if not equal to a civil war. The premise that a Biden-Cheney fusion ticket would uniquely doom Trump to failure is even more dubious. There has never been much evidence of a mass following for Never Trump Republicans, and such as it is, it is mostly composed of people who would (and did in 2020) gladly vote for Biden and Harris. The baleful effect that replacing Harris with Cheney on the ticket would have on Democratic turnout could easily offset or exceed the alleged benefits of bipartisan and trans-ideological fusion.
So Democrats should say thanks, but no thanks, to Friedman for the idea of submitting their party to some sort of unwieldy and unnatural coalition of national salvation, so long as there is the slightest possibility of beating Trump the old-fashioned way. Liz Cheney deserves great respect for the courage she has shown in defying Trump at the expense of her own career, and if Biden is reelected with her support, perhaps she deserves an ambassadorship, a minor Cabinet post, or a major sub-Cabinet position. But she has no business being at the top of the line of succession to a Democratic president.