Did Senate Democrats mess up? On the nomination of Samuel Alito, that's the question that grabbed the media's attention. What got lost in the post mortems is that, putting aside how Democrats performed, Senate Republicans abdicated their advise-and-consent responsibilities. Rather than exploring Alito's legal views, which will affect us for a generation, they worked tirelessly to divert attention from them, subverting any notion that the Senate has a meaningful role to play on behalf of the American people in the judicial appointment process.
On January 31, New York Times reported that the White House and its surrogates "laid out a two-part strategy" for the Alito nomination: "first, extol [Alito's] nonpartisan legal credentials ... steering the debate away from [his] possible influence over hot-button issues. Second, attack the liberal groups" in opposition. Senate Republicans faithfully followed the script.
Even though they, too, believe that judicial philosophy matters (remember Harriet Miers?), they repeatedly trotted out Alito's impressive qualifications as if those were the only reasonable consideration. They served up softball questions, once even asking Alito "who was the best debater" between his sister and him. They shamelessly and misleadingly blasted Alito's critics as amoral heathens looking for the courts to carry out an unpopular agenda. And they revised history with false claims that the Alito nomination was the conservative mirror image of Justice Ruth Bader Ginsburg's.
Most prominently, however, Senate Republicans baldly asserted, over and over again, that anyone who questioned Alito's views was engaging in "partisan politics," "distortion," "despicable behavior" and "character assassination." This was true, they implied, not only of Democratic senators, but law professors, editorialists and even news reporters. The point, of course, was to instantly discredit any meaningful analysis of Alito's record.
But why? It is clear that hard-line conservatives, especially those who sunk Harriet Miers, cheer Alito's elevation for the same reasons progressives fear it: his adherence to a vision of the law that aggrandizes executive power at the expense of individual freedoms, limits Congress's authority to protect workers and consumers, and restricts the courts' ability to enforce civil rights, women's rights and worker and public health protections. Why couldn't Republicans just be honest about that? Why wouldn't they elicit and defend Alito's specific legal views, rather than spouting platitudes about how judges should "interpret, not make, the law"?
After all, this was supposed to be the moment that the Right had been waiting for - the moment, not to obfuscate, but to triumphantly secure popular approval for "conservatives' paramount strategic objective of changing constitutional orthodoxies," according to former Reagan administration official Bruce Fein.
The reason why Senate Republicans assiduously avoided the supposedly long-awaited national debate about the role of the courts seems clear: they know the public won't embrace the throwback legal regime that the Right began trying to revive in Ronald Reagan's Justice Department 25 years ago. As demonstrated by the Senate's resounding rejection of Robert Bork's nomination in 1987, this vision, which Bork proudly articulated, is simply too scary for ordinary Americans to accept. So instead, elected Republican officials seek to achieve what Bork stood for through stealth. (And, yes, they are succeeding.)
While publicly beating their breasts about a handful of "activist" court decisions involving church-state separation, abortion and gay rights, hard-core conservatives quietly pursue a legal agenda that is far more adventurous, aggressive and sweeping. On the one hand, this agenda involves serious judicial activism - gutting a number of precedents and striking down or weakening many laws passed with overwhelming bipartisan support, including those prohibiting workplace hazards, pollution and discrimination. On the other hand, it would remove the courts from providing a bona fide check on overreaching by executive branch officials, including the president.
This is what the Right wants. And they know that this is what Alito, based on his long record, is likely to deliver - which is precisely why they began promoting him from the time President Bush took office. But to get Alito confirmed, Senate Republicans had to make sure that the public never fully understood. To avoid the same "mistake" of candor as Robert Bork, Alito did, too. Hence his steadfast refusal to divulge his own views on any already-resolved legal issue where the Right's agenda is out of step with high court precedent and public opinion - like Roe v. Wade, certain limits on presidential power and the constitutionality of executing an innocent man. Turning the hearings into a near-charade, Alito even refused to testify about subjects on which he had previously expressed a documented opinion.
At one point during the hearings, Senator Lindsey Graham (R-S.C.) taunted Democrats by saying that Republicans would "clean [their] clocks" if they choose to make judicial philosophy an election issue. But the fact of the matter is that if Republicans were ever forthright about the Right's legal agenda, Senator Graham would almost certainly be wrong. Getting the public to grasp that agenda is the challenge facing Democratic senators who care about the courts.