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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April 26: Kennedy Now Taking As Many Votes From Trump As From Biden
Polls are showing a subtle but potentially important shift that I discussed at New York:
For a while there, the independent ticket of ex-Democrats Robert F. Kennedy Jr. and Nicole Shanahan seemed to be taking crucial votes away from Democrat Joe Biden, at least as indicated by comparing three-way and five-way (with Cornel West and Jill Stein) polls to head-to-head matchups of the incumbent and Donald Trump. Now, even as Biden has all but erased his polling deficit against Trump, he’s getting some more good news in surveys that include other candidates.
Two recent major national polls show Biden running better in a five-way than a two-way race. According to NBC News, Biden moves from two points down to two points up when the non-major-party candidates are included. In the latest Marist poll, Biden leads Trump by three points head-to-head and by five points in a five-way race. Since left-bent candidates West and Stein are pulling 5 percent in the former poll and 4 percent in the latter (presumably taking very few votes from Trump), you have to figure Kennedy is beginning to cut into the MAGA vote to an extent that should get Team Trump’s attention. And it has, NBC News reports:
“Former President Donald Trump has repeatedly said he’s confident that independent presidential candidate Robert F. Kennedy Jr. will pull more votes away from President Joe Biden than from him — a net win for the Republican’s candidacy.
“’He is Crooked Joe Biden’s Political Opponent, not mine,’Trump wrote on Truth Social late last month. ‘I love that he is running!’
“Behind closed doors, however, Trump is less sure. A Republican who was in the room with Trump this year as he reviewed polling said Trump was unsure how Kennedy would affect the race, asking the other people on hand whether or not Kennedy was actually good for his candidacy.”
Politico notes that Kennedy is drawing higher favorability numbers from Republican voters than from Democratic ones, which could indicate a higher ceiling for RFJ Jr. among Trump defectors. And it’s generally assumed from his past performances that there is a lower ceiling on Trump’s support than on Biden’s; he needs to be able to win with significantly less than a majority of the popular vote, as one Republican told Politico:
“’If the Trump campaign doesn’t see this as a concern, then they’re delusional,’ Republican consultant Alice Stewart said. ‘They should be looking at this from the standpoint that they can’t afford to lose any voters — and certainly not to a third-party candidate that shares some of [Trump’s] policy ideas.’”
One likely reason that Kennedy could be appealing to Republicans is the residual effect from the positive attention he received from conservative media when he was running against Biden in the Democratic primaries; his identification with anti-vaccine conspiracy theories also resonates more positively on the right side of the political spectrum than the left. So it’s in the interest of Team Trump to begin telling the former president’s sympathizers that RFK Jr. is actually a lefty, and that started happening recently, as the New York Times reported: “Mr. Trump, the presumptive Republican presidential nominee, pointed in particular to Mr. Kennedy’s views on climate change and the environment, writing on his social media site that Mr. Kennedy was more ‘radical Left’ than Mr. Biden.”
The idea, of course, is not only to discourage potential Trump voters from drifting toward the independent candidate, but to encourage potential Biden voters to consider a Kennedy vote.
If Kennedy continues to draw votes from both Biden and Trump, each of their campaigns will need to make a strategic decision about how to deal with him: Do you ignore him and count on the usual fade in support afflicting non-major-party presidential candidates as Election Day nears, or do you attack him as too far left (if you’re Trump) or too far right (if you’re Biden) and try to make him a handicap to your major-party opponent? The more aggressive approach has become common among Democrats seeking to intervene in Republican primaries (or in the recent case of the California Senate race, a nonpartisan top-two primary) by loudly attacking candidates they’d prefer to face in the general election, encouraging Republicans to flock to the supposed menace to progressivism. This kind of tactic — if deployed with some serious dollars — could have an effect on Kennedy’s base of support.
Certainly Trump seems to be considering it. With his usual practice of saying the quiet part out loud, Trump opined: “If I were a Democrat, I’d vote for RFK Jr. every single time over Biden, because he’s frankly more in line with Democrats.”
Trying to minimize losses to Kennedy and maximize opposite-party votes for Kennedy could become a routine practice down the stretch. Where and by whom this strategy is pursued will depend in part on where RFK Jr. is ultimately on the ballot. Right now he has nailed down ballot access in just two states, Utah and Michigan. CBS News reports the Kennedy-Shanahan ticket is close to securing a spot on the November ballot in a number of other states:
“Kennedy’s campaign says it has completed signature gathering in seven other states in addition to Utah and Michigan — Nevada, Idaho, Hawaii, New Hampshire, North Carolina, Nebraska and Iowa.
“The super PAC supporting Kennedy, American Values 2024, says it has collected enough signatures in Arizona, Georgia and South Carolina.”
Coping with Kennedy could become a game of three-dimensional chess between the Biden and Trump campaigns. But if it begins to look like RFK Jr. has become an existential threat to Democrats or to Republicans, you can bet they’ll go medieval on him without even a moment’s hesitation.