Monday, January 16, 2006

I got debts no honest man can pay

Or a strategy no honest Senator can follow. The Democrats post-mortem on the Alito hearings as reported in yesterday's New York Times is wonderfully delicious schadenfreude. It's not only because Teddy "Splash" Kennedy and his crew crashed and burned so spectacularly. Even better, they still don't understand why. Do the Dems really think, as they say, that the problem is that the issues are "too complex" for the public to understand or that they would have "won the day" if Mrs. Alito hadn't cried. As law blogger Ann Althouse points out, the crying "worked" because it seemed justified:

"We'll never hear the end of the wife's crying. It's becoming mythic.
If only that hadn't happened, we could have gotten some footing out
of Kennedy badgering him about the alumni club. But the crying
resonated because we experienced the questions as unfair and
because we too were exasperated by what we could see was political
posturing."

The problem is the Dems' strategy. Rather than concede that they want justices who will decide cases in a certain way, they have tried to maintain the pretense of being concerned with "qualifications" and the conceit that they are merely opposing "ideological" judges. The idea was to paint Alito (and Owens, Brown, Pryor, et al., before him) as out of the "mainstream," i.e., not committed to maintaining a half century of activist jurispridence.

The difficulty is that, by buying into the idea that judges should be "neutral" and "nonideological", they have chosen to fight on the Republicans' turf. However popular they may be, the pantheons of liberal jurisprudence - Roe, Lawrence, Baake - are really hard to justify on neutral and nonideological grounds. Because Democrats accepted the idea that neutral and nonideological is what judges should be, all Alito had to do is explain how he is just that type of judge. He is that type of judge - and that does not bode well for the liberal agenda in the courts.

The real problem is that the Dems are trying to hang on to a judiciary that imposes policies that they cannot obtain politically. That's a tough nut to crack.

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