'Honorable conservatives used to warn against the raw power of the state. '

Extraordinary Circumstances Indeed
By Paul Rogat Loeb
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Tuesday 03 January 2006

Remember the "nuclear option" compromise? When the group of 14 Senators reached their agreement last May, they said they'd support a filibuster only under "extraordinary circumstances," presumably if Bush nominated Attila the Hun. I'd suggest these circumstances apply not only to Samuel Alito's track record but also to his nomination's entire political context.

In threatening to end the Senate's ability to filibuster judges, Republican leaders talk much about high principle, the right of presidents to have their nominees accepted or rejected without parliamentary obstructions. But the sole principle behind this proposed change is that of the power grab. The Republicans control the White House and Senate. They're attempting to consolidate control in every way they can, including trying to obliterate 200 years of Senate tradition on the filibuster. This threat isn't a moral stand: Republicans have filibustered nominees themselves. It's just one more in series of attacks on individuals and institutions that they've viewed as political obstacles, like Tom DeLay's mid-census gerrymandering, the leaking of Valerie Plame's identity, the jamming of Democratic phone banks, and the branding of political opponents as unpatriotic. Honorable conservatives used to warn against the raw power of the state. But the love of power has now become the political right's prime gospel, making the slightest notion of checks or balances heretical treason. Republican leaders work to end the filibuster not because they believe it violates some deep constitutional mandate, but because they believe they can get away with it.

But maybe they can't anymore. When Republicans first floated the "nuclear option" threat in early 2005, Bush's polling numbers were as high as 57 percent. His support has dropped steadily since, in the wake of the Katrina disaster, the legal problems of DeLay, Bill Frist, Karl Rove, Scooter Libby, and Duke Cunningham, and an Iraqi quagmire that's inspired powerful challenges by Cindy Sheehan and Congressman John Murtha. Republicans have lost key electoral battles in Virginia, New Jersey and California. Bush's polls have dropped as low as 37 percent. With once-solid Republican Senate and House seats now seemingly vulnerable, those who vote to eliminate the filibuster and confirm Alito will be taking far more of a political risk than they would have just a year ago.

Were Alito a reasonable Supreme Court choice, all this would be moot. But he isn't. He'll follow the script and evade specifics at his confirmation hearings, but he's still the candidate nominated to appease the political right because they deemed Harriet Miers insufficiently hard-line. Consistently opposing the federal government's right to address corporate abuses, Alito has argued for virtually unlimited executive power, including the government's right to intervene in the most intimate realms of personal life. He's endorsed the rights of police to shoot an unarmed 15-year-old who was fleeing after breaking into a house, defended the refusal of state employers to pay damages for violating the Family and Medical Leave Act, and said it created no undue burden if husbands could prevent their wives from getting abortions. Citizen groups, he's ruled, have no standing to sue convicted polluters under the Clean Water Act. The federal government, he's argued, has no right to pass national consumer protection legislation aimed at preventing odometer fraud or banning the sales of machine guns. Regarding the exclusion of blacks from juries in death penalty cases, he's called the statistical evidence as inconsequential as the disproportionate number of recent US presidents who've been left-handed. In one case, Alito's Third Circuit colleagues said the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Alito now downplays his membership in a Princeton alumni group so hostile to the admission of women and minorities that even Senate Majority Leader Frist condemned it. He dismisses as mere job-seeking his declarations, while applying to the Reagan-era Justice Department, that the Constitution does not protect a woman's right to choose an abortion, and that he disagreed with the Warren Court rulings that desegregated schools and expanded voting rights. He's trying to dismiss he memo he wrote, after getting the job, embracing the "goals of bringing about the eventual overturning of Roe v. Wade." He also minimizes the breaking of his pledge to recuse himself from cases involving his sister's law firm.

It's precisely because Alito's presence on the Court is so potentially damaging that Democrats and moderate Republicans have a responsibility to challenge his nomination through every possible mechanism, including the filibuster. Republican leaders who try to eliminate it as a political option need to be branded, along with every Senator who supports them, as embodying a politics that believes in nothing except its own right to power. With Roberts, Senators could say they were replacing the equally conservative William Rehnquist. To support Alito, we need to make clear, is to alter the balance on the Court radically for the most dubious of political ends. It does no good to reserve the right to filibuster in theory. If our Senators aren't willing to risk using it in a situation this exceptional, it becomes practically meaningless.

Senators accept a president's court nominations for three reasons: They respect the perspectives of their nominees; they believe a president should have the right to choose whomever he pleases, as America's legitimately elected leader; or they fear the president's political power. But this administration has no moral standing to which Senators should automatically defer. Bush gained the presidency through the extraordinary interventions of his brother Jeb and the existing Supreme Court. He was re-elected based on lies about Iraqi weapons of mass destruction, ties between Saddam Hussein and al Qaeda, John Kerry's war record, and the true costs of his tax cut and prescription drug plans. And through Ohio Secretary of State Ken Blackwell's elimination of 300,000 overwhelmingly Democratic voters from the Ohio rolls and the withholding of voting machines from key Democratic precincts. My friend Egil Krogh, who worked in the Nixon administration, hired G. Gordon Liddy, and went to prison for Watergate, told the sentencing judge that he and his colleagues had "almost destroyed democracy." The Bush people, he said to me recently, "are even more ruthless."

Alito's nomination embodies that ruthlessness. If confirmed, his track record suggests he'd support the Republican consolidation of power at every opportunity. But maybe the capacity of that power to intimidate is finally beginning to wane. If the Senate can find the courage to block Alito's confirmation, they will draw a critical line on a choice whose effects could echo for the next forty years. They need to recognize the high stakes and extraordinary circumstances of our time.