In his nomination of Harriet Miers to the Supreme Court, President George W. Bush followed an old proverb – “If you can skin a cat without getting the room all bloody, why not do it that way?”
By nominating a close friend and adviser whose views were virtually unknown outside the White House, the president chose to avoid a lengthy Senate battle between Democrats and Republicans. With polls showing his approval ratings in the 30s, a fragmented Senate could have diminished public confidence even further, thereby transforming him into a lame-duck just one year into his second term.
But in recent weeks, as Democrats sat tightly, the conservative coalition fragmented over Miers’ qualifications and ideology. With her resignation in place, and the nomination of Appeals Court Judge Samuel Alito pending, analysts say that the president lost his final chance to avoid a Senate showdown – efforts from the right have redoubled, since conservatives now demand a nominee with clear positions on abortion and judicial philosophy, while the Democrats have been heartened by their success in facing down Miers and the president’s battles with his constituency.
Bush’s nomination of a man with judicial history has been seen by many political pundits as a call to arms. Now, they say, there can be an open debate linking political issues with the Supreme Court – no more holding back as with Harriet Miers. However, a closer examination of Alito’s qualifications reveals that he is not just a consummate conservative nominated to limit privacy rights, but a man with a political philosophy extending beyond right and left.
Alito’s role in Planned Parenthood v. Casey, in which he voted to uphold a Pennsylvania law that made it more difficult for women to receive an abortion – women now had to notify their spouses before the abortion – has been publicized by the media as evidence that Alito would overturn Roe v. Wade if he were on the court.
What needs to be understood, however, is that Alito is not so clear-cut. In 2000, for example, he joined in a decision that struck down a Nebraska law outlawing partial-birth abortions. And in 1995, he cast the deciding vote eliminating parts of a Pennsylvania law restricting rights of women seeking publicly funded abortions when their lives were in danger from pregnancy.
At the least, Alito’s prior decisions on abortion show that he does not vote based on his religious opinion. In an era brimming with privacy rights debates, it is important that a judge not go to the Court with an agenda, intent only on supporting laws that fit in to his or her moral or religious mold.
All this means is that as Democrats, we should be cautious before we withhold our support and motion for a filibuster. The party succeeded on the Miers nomination because it did not come out of the cage armed and ready to fight. Doing so would have united the Republican Party around its nominee, almost guaranteeing its success. Skepticism and criticism is of course necessary, but undue demonization of the candidate as a radical neo-conservative is improper and as Alito’s history shows, unwarranted.
We need to also realize that, should this nomination fail, Bush may become eager to win back support among conservatives and would certainly nominate someone new and even further to the right. Here we already have a candidate who is a strict interpreter of the Constitution, he is not an ideologue and he possesses a solid education and background.
This does not mean that as Democrats we should welcome Alito with open arms. It is our duty to the American people to investigate the candidate and question him thoroughly during the confirmation hearings.
If, after the hearings are over, we find him unsuited to the stability of a strong United States, so be it. Waiting before we begin a concerted attack will prove that we have the best interests of the country in mind. We owe it to the American people, the strength of the United States and the viability of its future to give this nominee a fair chance, and at the very least, keep an open mind.
Dordi can be reached at rdordi@campustimes.org.
