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The Democrats and Alito’s Supreme Court confirmation

The US Senate's all but certain confirmation of Samuel Alito as associate justice of the Supreme Court is an event of immense political significance. The lifetime appointment of Alito will shift the court even further to the right, which will facilitate the ongoing attack on democratic rights and social conditions in the United States.

Alito has a long judicial record that provides a clear indication of how he will rule on the Supreme Court. Alito favors an interpretation of the Constitution that allocates to the president extensive powers against the legislative and judicial branches of government. He is a strong advocate of the theory of the "unitary executive," which has been used to justify the repudiation of legal constraints on presidential actions. During his 15-year tenure on the Third Circuit Court of Appeals, Alito has consistently favored a broad interpretation of police powers against the privacy rights of ordinary people.
The political context in which Alito will be confirmed is one whereby the Bush administration, using the pretext of the "war on terrorism," has sought to erect the legal framework for presidential dictatorship. The indefinite detention of prisoners without charge and the abrogation of habeas corpus rights, the use of torture, the right to wage preemptive war, and, most recently, the right to spy on the American people—all of these powers have been claimed by the administration as part of the president's role as commander-in-chief.

There can be no doubt that the Bush administration and its supporters will find an important ally in the person of Samuel Alito. Alito will be replacing Sandra Day O'Connor, who, while a right-wing judge, was somewhat less inclined to support the power grab by the executive branch. Together with Antonin Scalia, Clarence Thomas and Chief Justice John Roberts, Alito will help to give the Bush administration's assault on democratic rights and repudiation of the Constitution the imprimatur of the highest court in the United States.

On other issues, Alito's positions are equally right-wing. He has been a trusted friend to the interests of big business, favoring a limited interpretation of federal powers under the Commerce Clause of the Constitution. He will use his position on the bench to further undermine the legal framework that, since the era of the New Deal, has supported corporate regulations and welfare programs.

And Alito has received the enthusiastic support of anti-abortion fanatics. It should be recalled that Bush's choice of Alito followed the move by Christian fundamentalists to scuttle the nomination of Harriet Miers because her opposition to abortion was not firmly established. In general, Alito has advanced positions that undermine the separation of church and state on many questions, including the teaching of evolution in public schools.

Given Alito's extreme right-wing views on every major issue, the decision by the Democratic Party to abstain from any serious opposition to his nomination is a damning indictment of its role in American politics. Leading Democrats have already ruled out the use of the filibuster, which is the only way that his nomination could be halted. The administration has called for an up-or-down vote on Alito by the time of Bush's State of the Union Address on January 31. According to reports, Alito's supporters are so assured of his confirmation that they have already begun congratulating him and introducing new lower-court nominations in the Senate.

The capitulation of the Democrats has been so abject that sections of its media supporters are concerned that the party will become further discredited in the eyes of broader sections of the population. This is the significance of the lead editorial in the New York Times on Thursday, entitled "Senators in Need of a Spine."

The Times points out, quite correctly, that Alito as a justice will likely "ignore our system of checks and balances, elevating the presidency over everything else," and that he does this at a time when the Bush administration "seems determined to use the cover of the 'war on terror' and presidential privilege to ignore every restraint, from the Constitution to Congressional demands for information."

The newspaper is concerned that the Senate "seems eager to cooperate by rolling over and playing dead." Alito's positions mean that his nomination "cannot simply be shrugged away with a promise to fight another day." The editorial concluded by counseling the Democrats to at least make a show of mounting a filibuster attempt: "A filibuster is a radical tool," the newspaper wrote. "It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court."

Behind the newspaper's editorial is a deep unease, not so much with the prospect of Alito on the Supreme Court, as with the way in which the Democrats have let him pass through the confirmation process. The Times is well aware of the enormous anger building up within the party's traditional base over the Democrats' refusal to oppose the administration, and not only in relationship to Alito. Earlier this month, House Minority Leader Nancy Pelosi was booed during a public meeting after she declared herself opposed to the impeachment of Bush for authorizing illegal spying by the National Security Agency.

There is a concern that the spinelessness of the Democrats will undermine one of the parties of big business, posing a threat to the stability of the two-party system. At least a pretense of serious opposition is critical in keeping political discontent within established channels.

Reports Thursday that Senator John Kerry supports a filibuster attempt reflect these same worries. Having originally indicated that it will do nothing but vote against Alito, a section of the party may follow the advice of the Times and go through the motions of a filibuster campaign. However, Kerry, and whatever supporters he is able to gather, are well aware that a filibuster will never succeed due to opposition from within the Democratic Party itself.

The nomination of Alito casts light on the significance of the deal made between Democrats and Republicans in May 2005, when leading Republicans in the Senate, confronting opposition from Democrats to some district court appointments, threatened to overturn Senate rules and abolish the filibuster. In response to this threat to use the so-called "nuclear option," seven Democrats and seven Republicans agreed to a deal that would preserve the filibuster with the promise that it would be used only in "extraordinary circumstances."

As an immediate consequence of this agreement, Republicans were able to vote in a number of extreme right-wing judges for district court positions. Most importantly, from the standpoint of the Republicans, was that they succeeded in cowing Democrats so that when Bush presented his nominations for the Supreme Court he would be able to appoint candidates of his choice. Bush's first Supreme Court pick, Roberts, has already been confirmed with significant support from the Democrats. With Alito's confirmation, once again the Democrats will give the Republicans exactly what they want.

The pretext that Democrats used to explain their former capitulations—that they were saving their strength for the "big fight" on Supreme Court appointments—is now exposed as a complete fraud. Outside the nomination of an open fascist, there could hardly be a more "extraordinary circumstance" than the confirmation of Alito. However, a number of the Democrats who participated in the original deal on the nuclear option have already stated that Alito does not merit a filibuster. These include Senators Ben Nelson from Nebraska, Joseph Lieberman from Connecticut, Robert Byrd from West Virginia, Mary Landrieu from Louisiana and Mark Pryor from Arkansas. Nelson and Byrd, together with Tim Johnson of South Dakota, are the only Democratic senators who have publicly stated that they will vote for Alito.

Senator Dianne Feinstein, who sits on the Senate Judiciary Committee and voted against Alito, foreswore a filibuster over a week ago, saying, "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court." She indicated that she would vote for a closure of debate, currently scheduled for Monday evening. Including the 55 Republicans in the Senate, the number of senators who have already stated their opposition to a filibuster exceeds 61, which is the number needed to force an up-or-down vote.

In discussing the Democrats' spinelessness, the Times states that the senators "seem unwilling to risk the public criticism that might come with a filibuster." As always, the population as a whole is blamed for the right-wing positions of the Democratic Party. In fact, the Democrats are not concerned about public criticism, but rather the opposite. Their greatest fear is that the mobilization of popular opposition against the administration will threaten the interests of big business, which the Democrats themselves fully defend.

There are two basic conclusions that can be drawn from the Alito confirmation process. First, it is a further indication that the Democrats intend to conduct the 2006 midterm elections on a right-wing basis. They will make no real attempt to appeal to popular anger over the war or the attack on democratic rights. Second, even if on this right-wing basis the Democrats are able to secure a majority in one or both of the houses of Congress, this would not significantly alter the policies of the US government. The ascension of Justice Alito is further demonstration that there exist no fundamental differences between the two parties.

-world socialist website

homepage: homepage: http://www.wsws.org

Abortion issue 27.Jan.2006 12:01

g.d. dem

Joe Kay neglects to mention the key issue in this Alito confirmation affair. The Republicans have chosen Alito precisely because he has clearly been identified as "pro-life" and opposed to Roe v. Wade. That's the issue that the public relates to in places like "Bible Belt" Nebraska, Arkansas and South Dakota. In Connecticutt, Lieberman is aware of the position of the RC Church, which went so far as to threaten John Kerry with denial of Holy Sacraments over the abortion isssue in 2004.

The bottom line is that with ZERO Republicans (in a Republican congress) willing to anger the "pro-life" lobby by opposing the Republican bosses on Alito, Democrats will have ZERO ability - if Kerry attempts a filibuster - to prevent the Republicans from changing the rules to prevent another filibuster in this Congress. The abortion issue is ideal for the Republicans -- because it gives them "moral" cover to pull their "nuclear option".

Why is it important to hold on to the filibuster for another few months? Because there is very likely a lame duck session coming up after the election in November. If the Democrats take back the Senate in November, there will be Republicans who are lame ducks and there will be enormous pressure on ALL Republicans to enact Bush's wish list of regressive legislation. That's when the filibuster will be crucial and will receive broad public support. As for why the Democrats will be able to do then what they can't do now, there will be a few (enough) Republicans in the Senate after November who are looking ahead to the 2008 election that they will join with the Democrats to prevent elimination of the filibuster at that time -- on issues unrelated to the abortion issue. However, without the filibuster intact in November and December, opposition to the Republican bosses and to horrible regressive legislation (enacted by a desperaate lame-duck Republican congress) will be difficult to impossible. That would set the parameters of debate in the new congress, PLUS Bush will be able to veto whatever the next Congress does to roll back legislation from the previous lame duck session.

It's a tough choice for the Democrats on the Alito thing. But it doesn't boil down to that the Democrats are cowardly shying away from congrontation. The Republicans hold the Senate -- 55 Republicans to 44 Democrats -- and when you are outnumbered, you have no choice but to take losses, seek to preserve your options for as long as possible and make every round that you fire count. There's an old saying: "Discretion is the better part of valor".

As for Byrd, he is IMHO deflating the filibuster illusion in this case in order to preserve the filibuster for the lame-duck session of Congress that will begin after the election in November and through the end of the year. (Of course, Byrd is a populist and doesn't mind appealing to the not inconsiderable "Bible Belt" sentiment in West Virginia.)

Joe Kay, I believe, sees things from the point of view of New York City or San Francisco -- but he has little understanding of the "heartland", where abortion is a far greater issue than all the economic issues that the WSWS sees as crucial. I know, Marx says it all boils down to the materialist issues -- but does it?

Ask them out there in Nebraska and Arkansas and South Dakota. Even here in Oregon. It doesn't fit Marxist theory, but what do you do when the masses don't vote their own economic self-interest and instead vote "social issues"? One thing you DON'T do is try to force the facts to fit your theory. And you don't make the mistake of thinking that the New York Times reflects the popular opinion or mindset of American voters outside of the New York City metropolitan area.

GD DEM 27.Jan.2006 16:18


this was by far you worst attempt to slander both the WSWS and Joe Kay. Better luck next time eh?

"slander" ?? 27.Jan.2006 21:12

g.d. dem

Watch your language, Steve. Since when is it "slander" to challenge someone and present an alternate point of view?

I made one objective statement about Joe Kay -- namely, that he fails to mention the abortion issue in this Alito affair. By that I meant that Joe Kay makes no mention of the abortion issue in the context of his discussion of the filibuster question. (He does mention it briefly, in passing, as background: "Alito has received the enthusiastic support of anti-abortion fanatics".) But Joe Kay fails even to hint at how the abortion issue is key to everything that is happening about Alito in the Senate, in public opinion and in the media.

Joe Kay provided no analysis of how the abortion issue provides the Republicans with perfect cover for the nuclear option - nor does Kay mention the significance of the filibuster in the context of a likely lame duck session in November/December of this year -- including the fact that there would be no way to undo the regressive legislation because Bush could veto anything along those lines.

If Kay had mentioned any of those points, I would not have commented. Since Kay failed to mention any of those relevant facts, i did comment. But that isn't "slander" -- unless challenging someone on what they say is slanderous?

Maybe what Steve considers "slander" is this: "Joe Kay, I believe, sees things from the point of view of New York City or San Francisco -- but he has little understanding of the 'heartland', where abortion is a far greater issue than all the economic issues that the WSWS sees as crucial." But that statement of mine was given as opinion ("I believe") and not presented as objective fact.

It would have been a positive contribution if Steve had bothered to research for where Joe Kay possibly lives -- but I have to do everything. Turns out, as far as I can discover, that Joe Kay probably lives in Ann Arbor, Michigan (college town for U. of Michigan).

 link to www-personal.umich.edu

So whatever blinders Joe Kay wears, they may have to do more with the culture of university towns than with the culture of NYC or San Francisco.

Interesting that Steve resorts to cuteness rather than actually addressing any of my points or making any positive contribution. I do not have a vendetta against Joe Kay -- in fact I have complimented him on occasion. Joe Kay deserves a better defense than Steve's cuteness.

Something about me, I guess. I just have this gift for bringing out the worst in people like Steve.

Filibuster - nuclear option 27.Jan.2006 22:52


The nuclear option (if successful) would only apply to the use of the filibuster in judicial nominations. The filibuster itself would still remain a tool for any other debate except judicial nominations. So the reasoning that not filibustering Alito now in order to preserve the filibuster for the lame duck Congress in Novermber/December makes no sense and is misleading.

Also, if it came to voting for the nuclear option, there might still be some moderate Republicans with enough brains to realize that they won't be able to filibuster any liberal nominees in the future either. But far more imminent, they would have to realize that the Democrats in retaliation would shut down Senate procedings for the remainder of this Congress (until January 2007) so that no piece of Republican legislation would get passed in the Senate. (Actually not a bad thing considering some of the fascist items on the agenda.)

And another thing: Everyone seems so hung up on the abortion issue. I think this should be our secondary concern only. IMO, Roe won't get overturned because it is the basis off of which the Republican party feeds. Once it was overturned, they would have nothing else to rally around. The primary concern with Alito should be his views of an all-powerful executive branch with dictatorial powers. Especially with the current NSA wiretapping scandal, that may very well end up before the Court, it is most troubling that we may allow Alito to join the Supreme Court. He would likely rule in favor of affirming the President's unlimited dictatorial powers. So whining over Alito's stance on abortion is like crying about a stain on the carpet while the house is burning down.

Andy - if only that were true . . . 28.Jan.2006 13:22

g.d. dem

Andy claims that "the nuclear option (if successful) would only apply to the use of the filibuster in judicial nominations." If only that were true . . .

The vote on Frist's motion to limit debate - requiring 60 votes - is scheduled for 4:30 on Monday. Now that Wyden has joined the filibuster movement, I support it. I still think that there is an important point arguing against filibuster at this time when the key issue in the public mind is abortion -- but solidarity and unity override other considerations of strategy.

Yes, Republican bosses of the Senate have argued that the proposed rule change should or could be taken as affecting only judicial nominations, but those statements have been carefully crafted to avoid being taken as limiting the precedent set by the nuclear option. There is nothing actually in the nuclear option procedure that puts the limitation to judicial appointments in writing, let alone sets it in stone. That means that relying upon that concept is relying upon the word and honor of known liars and dissemblers! How many times have they turned around to totally reverse their previous positions, without ever acknowledging that they have done so?

The nuclear option is a tactical device. Avoiding the nuclear option vote at this time on this issue -- that's a question of strategy. It's a close call, with reasons arguing both ways. But the point that the precedent would be established and APPLY TO ALL LEGISLATION (not just judicial appointments) is valid and real.

Assuming a lame duck congress after the November election, when the Republicans raise the point of order to stop debate, there could be a repeat of the challenge to the point of order that would be ruled on (affirmative, of course) by Cheney (as presiding officer of the Senate). The ruling by Cheney would lead to a repeat nuclear option -- that is, to a motion to table debate on the point of order. If the motion to table carries with just 50 votes, the point of order will also carry. It has nothing whatsoever to do with a supposed distinction between debate on judicial appointments and debate on legislation or resolutions -- unless Cheney wanted the precedent to be interpreted in that way, which he doesn't.

We are not talking about a man with a reasonable respect for parliamentary procedure or Senate tradition -- we are talking about Cheney who views all of it as "tools" to be manipulated for the sake of the neo-con agenda and to defeat the enemy of "liberalism" in a holy war.

The thing is that once the precedent is established - that debate can be limited by a simple majority (even by a 50-50 vote) - that precedent makes it much easier to repeat the tactic AND provides cover for the tactic in terms of avoiding opposition from the people and from moderate Republican senators. If the nuclear option occurs on the Alito confirmation, Republicans will be able in November to direct the corporate media to frame the cut-off of a filibuster attempt NOT as anything to do with the Senate changing majority in January, but just following the new rules already established last spring. Then, if the issue in November/December has a bare 50-50 "majority" (with Cheney voting the tie-breaker), that means the regressive legislation on that issue will be enacted. Furthermore, the first issue to be decided in that way (in November/December) would be an issue that is, like the Alito thing, related to something that appeals to the same "pro-life" constituency. Each time it happens, it gets easier. With Bush continuing as president, all the regressive legislation will be locked in because of the presidential veto power.

If, however, the nuclear option doesn't happen, that means that the same moderate (honorable) Republicans that drove the compromise that prevented the nuclear option some months ago will once again combine with Democrats to say that - aside from whatever issues may be involved in legislation - respect for Senate tradition and long-established rules leads them to vote against the point of order. (Thus, those Republicans can still picture themselves as "pro-life".)

It's important to realize that, after November, everything can be held up, if need be, until the next Congress convenes in January. Every vote on this nuclear option issue counts -- so even if the distinction between following the old precedent and following the new (nuclear option) precedent isn't that important to you or me -- what matters is every single swing Republican vote. The Republicans have a 55 majority -- and all they need to ride roughshod over a lame duck session is a "majority" (with Cheney's tie-breaker) of 50! So, what matters is the one senator who may represent the crucial vote -- that's what matters, not what you think is the way that the precedent should be interpreted (as limited to judicial appointments).

On the other hand, it is true that your interpretation could provide some cover for moderate Republican senators, whether the nuclear option is exercised at this time or not. But much more cover would result from the nuclear option never having been tried previously, so that the old Senate rules would retain the full force of tradition and the filibuster issue could not be tied to abortion.

Anyway, it looks like Kerry will attempt to lead a filibuster, but with 55 Republicans voting to limit debate, only 5 Democrats are needed to stop Kerry. It looks like that's what will happen. But maybe not. It could be very, very close.

Now that Wyden has joined the filibuster movement, I support it. I still think that there are important points either way -- but solidarity and unity override other considerations of strategy. If Alito's appointment can be stopped -- it should be.

Here's description of the "nuclear option" from wiki --

"The nuclear option would begin with a filibuster or other dilatory tactic by the minority. A senator from the majority would then raise a point of order saying that the filibuster or dilatory tactic is not permissible in this circumstance. The presiding officer would rule in favor of the point of order. The minority would appeal the ruling, thereby opening debate on the point of order. The majority would then move to table debate. A vote on tabling would follow immediately. The majority would prevail with 51 votes, and debate would be tabled. Then Senate would then proceed to vote on the point of order itself. The majority would again prevail, and the filibuster or dilatory tactic would be barred by the new precedent."


from TheModerateVoice.com --

"Many Republicans have relished the idea of a Democratic-led filibuster [on the Alito confirmation], saying it helps them portray the minority party as obstructionist and beholden to left-leaning groups. . . . Is the goal showing that you have the cojones to fight the GOP or battling for your principles and coming out of the fight in a way so that you don't do exactly what your political opponents are praying you'll do. The reason: there is always the "nuclear option" on judicial nominees (and perhaps once it seems easy on this one, the "nuclear option" could be eventually used on other issues that face filibusters as well)."