John Podhoretz, writing in the New York Post Online, confirms what I wrote earlier about the Alito confirmation.
ABOUT that "all-out political war" — as an MSNBC anchor dubbed it — that has supposedly broken out over the nomination of Samuel Alito Jr. to the Supreme Court: There isn't going to be one.
Why not? Podhoretz makes a strong case.
No Supreme Court nominee has been rejected by the Senate since Bork, during Ronald Reagan's second term. Bork's defeat came in a Senate controlled by Democrats. Today's Senate is dominated by Republicans, 55 to 45.
And though a few liberal Republicans may consider voting against Alito, on the key question of abortion his record is complicated. He voted in 2000 to void a New Jersey law limiting the noxious practice of partial-birth abortion, because he believed a prior Supreme Court decision required him to do so. And when he voted to uphold a Pennsylvania law requiring a wife seeking an abortion to notify her husband of her intent to abort their child, Alito did so on the basis of opinions by . . . Sandra Day O'Connor. And that's just what he'll tell Chuck Schumer during his hearing . . . .
I suspect there's enough ambiguity in Alito's record to allow a liberal Republican to vote for him — and three Democratic senators fighting for their lives in red-state elections next year (the two Nelsons, Florida's Bill and Nebraska's Ben, plus Louisiana's Mary Landrieu) will want to support the nomination.
Of course, there is the question of the filibuster.
Will Democrats try to block Alito with a filibuster? Almost certainly no. Why? Because in that circumstance Republicans led by Sen. John McCain will be forced to support the president by voting for the so-called "nuclear option" to change the filibustering rules. That takes only 50 Republican votes and one from Vice President Dick Cheney, who can break a tie vote in the Senate.
Triggering the "nuclear option" would be a huge defeat for Democrats — a defeat far greater than letting a distinguished jurist like Alito get through, no matter how much grumbling they do. They won't risk it. Barring some shocking revelation, Alito is in by Christmas.
When Alito joins the court, Bush will have succeeded in shifting that body of nine a bit toward the right. A plausible prediction can be found in Charles Lane's piece in the Washington Post.
That doesn't mean that the process won't be ugly. Indeed, its ugly already.
It took only two hours for the anti-Alito rhetoric to overheat, courtesy of New York's own Sen. Chuck Schumer. He decided, in a pretty amazing display of bad taste, to use the late Rosa Parks' corpse as a weapon.
"The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place," Schumer said.
Now, it's one thing for a senator to say that Alito should not be confirmed because he is too conservative. That's been Schumer's stance on GOP judicial nominations, pure and simple, and while it may be wrong-headed, it's not disreputable. It's quite another for Schumer to oppose a conservative jurist by suggesting his views are implicitly segregationist. That's just a lousy and rotten thing to do.
I agree with Podhoretz on both counts, though I have argued that for a Senator to oppose a court nominee because he or she is too conservative, or too liberal for that matter, is a breach of Senate traditions. Justices Bryer and Ginsburg were confirmed with strong Republican support even though both were regarded as certain votes to confirm Roe. To oppose nominees simply because they are on the other side of the judicial spectrum threatens to derail the nomination process.
But to suggest that conservative nominees want to reverse the civil rights revolution is nastiness on a whole 'nuther level, as we would say back in Arkansas. It is simple slander.
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