THE BLOG
03/31/2010 05:12 am ET | Updated May 25, 2011

Samuel Alito, Lilly Ledbetter, and the Cowardice of Key Senate Democrats

Today is the one year anniversary of the enactment, with President Obama's signature, of the Lilly Ledbetter Fair Pay Act. The Act overturned a despicable ruling by the Supreme Court that sided with the Goodyear Corporation against Lilly Ledbetter, who had been discriminated against for literally decades.

The author of that opinion - Justice Samuel Alito.

Mr. Alito has achieved media fame, however, for visibly disagreeing with President Obama during the State of the Union address two days ago. Mr. Obama was criticizing the radical decision - adopted on a 5-4- vote, to allow corporations to make unlimited expenditures in elections.

But why was Mr. Alito even sitting there, however disagreeably? Mr. Alito has been a conservative movement lawyer for decades, literally groomed for the Supreme Court. A member of the Federalist Society, he later served under notorious Attorney General Ed Meese and was nominated to the Federal appellate bench in 1990. Not a single senator voted against him.

Mr. Alito was nominated by President G.W. Bush to replace Sandra Day O'Connor, who retired to care for her ailing husband. It is rather difficult to imagine that Justice O'Connor would have ruled in favor of the discriminatory Goodyear Corporation, even though she had been a Republican state legislator from Arizona. She was the swing vote on almost all critical matters.

Although Mr. Alito's legal views were well enough understood, he promised to keep an open mind and respect precedent. The stakes were extremely high and well described by advocacy groups following the courts. Groups, including CREDO Action, supportive of civil rights, limits on executive power, and the ability of the Federal government to regulate corporations, fought hard to generate opposition. The ACLU, for only the second time in its long history, opposed the nomination.

Senators Kennedy and Kerry started public discussions of a filibuster. In the end, they were shot down by other Democratic senators and Sen. Harry Reid. Mr. Alito was confirmed 58-42, the most "no" votes since Robert Bork was defeated a generation earlier. Some senators congratulated themselves for a good fight. But, as is now well understood, those 42 votes were more than enough to sustain a filibuster and defeat legislation or an appointment. The current Republicans in the Senate have made an art form of it.

The vote to overcome the threatened filibuster succeeded easily 72 - 25. Clearly many senators wanted to take the step of voting no on Alito while actually ensuring that he would become O'Connor's replacement. Among those who voted to end the filibuster and then covered themselves by voting against Alito are some very familiar names from the current health care debate - Joe Lieberman, Blanche Lincoln, and Thomas Carper.

Why would 42 Democratic senators prefer to vote no on a clearly radical nominee for the Supreme Court but be afraid to actually take the steps to defeat him?

Mr. Alito even received yes votes from four Democratic senators - Sen. Byrd of West Virginia, Sen. Conrad of North Dakota, Sen. Johnson of South Dakota, and Sen. Ben Nelson of Nebraska. All retain their seats today.

The cost of the timidity of the Democratic Senate resistance to Mr. Alito is now becoming clear. The conservative majority on the Supreme Court is relatively young, activist, and clearly spoiling for fights with the majority in Congress and with Mr. Obama. They will overturn other precedents thought safe.

It is likely to remain so for many years.

And it did not have to be that way.

We need tougher senators or it is going to get much worse.