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The Senate's fake debate over Alito

By Lance Selfa | January 13, 2006 | Page 9

BY THE time you read this, the well-rehearsed snow job intended to secure the confirmation of Judge Samuel Alito to the U.S. Supreme Court will be well underway.

All the players in the Senate made-for-TV drama will play their respective parts. Alito will be schooled to dodge and weave around many questions.

Ironically for conservatives who claim to represent the U.S. majority, their judicial champions always seem to run away from their conservative views at confirmation hearings.

The so-called moderate Republicans, like Sen. Arlen Specter, who say they're withholding judgment until they see how Alito responds to questions, are playing their part, too. What they really mean is that they'll vote for Alito unless his confirmation hearings go so badly that it becomes politically untenable for them to do so.

And Democrats, in deference to their "respect for the process," will couch what should be direct and open questions about politics and principle in the mumbo-jumbo of "separation of powers," "deference to the executive" and other legalese.

All of this will do a disservice to an understanding of what really is at stake here.

In a recent article in Womensenews, former Planned Parenthood President Gloria Feldt noted that Ayotte v. Planned Parenthood of Northern New England, recently argued in the Supreme Court, would gut Roe v. Wade "through the backdoor." This case tests the legality of restrictions placed on teenagers' access to abortion in New Hampshire. If the anti-abortion side wins this case, it would establish two poison precedents: that considerations of a pregnant woman's health could be rejected to restrict abortion and that abortion restrictions could go into affect regardless of whether they threatened a woman's health.

In the Court's current makeup, these anti-abortion provisions are likely to be thrown out. But in a Court with Alito, who pioneered the piece-by-piece attack on abortion rights when he was a Reagan administration Justice Department lawyer, they could be upheld.

But Bush didn't just pick Alito (and earlier, John Roberts) as payoffs to the Christian Right. He also knows that both of them are likely to shut down court and congressional challenges to the regal powers Bush has claimed under "the war on terrorism."

Even the New York Times, which did its part promoting Bush's lies on Iraq and covering for his warrantless spying for more than a year, sounded an alarm. "[Alito] has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power--a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in 'one person one vote.'"

But true to form, the Times didn't call for the Senate to reject Alito.

A Harris survey showed that 70 percent of Americans would oppose Alito if they knew his vote would make abortion illegal. Unfortunately, the confirmation hearing pantomime will muddy what should be a clear political choice.

The Republicans have shown quite clearly that they plan to get Alito on the Court at whatever cost. They have already said that they are willing to declare the "nuclear option"--to strip the Democrats of their ability to filibuster Alito's nomination to death.

But their preferred strategy lies in obscuring, and allowing Alito to obscure, the clear conservative agenda that he brings with him.

Any Democratic questioning that allows Alito to get away with this--and questions about abstract legal doctrines will certainly do that--will play into Alito's hands. And any Democratic indications that they won't filibuster so that they can preserve their right to filibuster in the future means that they are prepared to take a dive for Alito.

If the Democrats tread these well-worn paths, why should anybody listen to them the next time they talk about how crucial Democratic election victories are to the Supreme Court, to civil rights and to the right to abortion?

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