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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July 26: The Obama Coalition Revisited
It’s pretty obvious Kamala Harris’s candidacy changes the 2024 presidential race more than a little, and I wrote at New York about one avenue she has for victory that might have eluded Joe Biden:
During her brief run for the Democratic presidential nomination in 2019, Kamala Harris was widely believed to be emulating Barack Obama’s 2008 campaign strategy. She treated South Carolina, the first primary state with a substantial Black electorate, as the site of her potential breakthrough. But she front-loaded resources into Iowa to prepare for that breakthrough by reassuring Black voters that she could win in the largely white jurisdiction. She had the added advantage of being from the large state of California, where the primary had just been moved up to Super Tuesday (March 3). For a thrilling moment, after her commanding performance in a June 2019 debate, Harris seemed on track to pull off this feat, threatening Joe Biden’s hold on South Carolina in the polls and surging in Iowa. But neither she nor Cory Booker, who also relied on the Obama precedent, could displace Biden as the favorite of Black voters or strike gold in the crowded Iowa field. Out of money and luck, Harris dropped out before voters voted.
Now Kamala Harris is the presumptive Democratic presidential nominee for 2024 without having to navigate any primaries. But she still faces some key strategic decisions. Joe Biden was consistently trailing Donald Trump in the polls in no small part because he was underperforming among young and non-white voters, the very heart of the much-discussed Obama coalition. Can Harris recoup some of these potential losses without sacrificing support elsewhere in the electorate? That is a question she must address at the very beginning of her general-election campaign.
There’s a chance that Harris can inject a bit of the Obama “hope and change” magic into a Democratic ticket that had previously felt like a desperate effort to defend an unpopular administration led by a low-energy incumbent, as Ron Brownstein suggests in The Atlantic:
“Polls have shown that a significant share of Americans doubt the mental capacity of Trump, who has stumbled through his own procession of verbal flubs, memory lapses, and incomprehensible tangents during stump speeches and interviews to relatively little attention in the shadow of Biden’s difficulties. Particularly if Harris picks a younger running mate, she could top a ticket that embodies the generational change that many voters indicated they were yearning for when facing a Trump-Biden rematch …
“In the best-case scenario for this line of thinking, Harris could regain ground among the younger voters and Black and Hispanic voters who have drifted away from Biden since 2020. At the same time, she could further expand Democrats’ already solid margins among college-educated women who support abortion rights.”
Team Trump seems to believe it can offset these potential gains by depicting Harris as a “California radical” and a symbol of diversity who might alienate the older white voters with whom Biden had some residual strength. Obama overcame similar race-saturated appeals in 2008, but he had a lot of help from a financial collapse and an unpopular war presided over by the party of his opponent.
Following Obama’s path has major strategic implications in terms of the battleground map. Any significant improvement over Biden’s performance among Black, Latino, and under-30 voters might put Arizona, Nevada, Georgia, and North Carolina — very nearly conceded to Trump in recent weeks — back into play. But erosion of Biden’s support among older and/or non-college-educated white voters could create potholes in his narrow Rust Belt path to victory in Michigan, Pennsylvania, and Wisconsin.
These strategic choices could definitely affect Harris’s choice of a running-mate, not just in terms of potentially picking a veep from a battleground state, but as a way of amplifying the shift produced by Biden’s withdrawal. Brownstein even thinks Harris might consider following Bill Clinton’s 1992 example of doubling down on her own strengths:
“The other option that energizes many Democrats would be for Harris to take the bold, historic option of selecting another woman: Whitmer. That would be a greater gamble, but a possible model would be 1992, when Bill Clinton chose Al Gore as his running mate; Gore was, like him, a centrist Baby Boomer southerner—rather than an older D.C. hand. ‘I love Josh Shapiro and I think he would be a great VP candidate, but I would double down’ with Whitmer, [Democratci consultant Mike] Mikus told me. ‘I don’t think you have to go with a moderate white guy. I think you can be bold [with a pick] that electrifies your base.’ I heard similar views from several consultants.”
Whitmer’s expressed disinterest in the veepstakes may take that particular option off the table, but the broader point remains: Harris does not have to — and may not be able to — simply adopt Biden’s strategy and tweak it slightly. She may be able to contemplate gains in the electorate that were unimaginable for an 81-year-old white male incumbent. But the strategic opportunity to follow Obama’s path to the White House will first depend on Harris’s ability to refocus persuadable voters on Trump’s shaky record, bad character, and extremist agenda. Biden could not do that after the debate debacle of June 27. His successor must begin taking the battle to the former president right now.