As everyone is absorbing the Harriet Miers / Samuel Alito do-over, it’s important to note that more than just the faces have changed. In looking at the past to predict the fate of Scalito’s (have to love that nickname) nomination, the analog is not, as many have written, the John Roberts nomination, but the fight over Janice Rogers Brown, Priscilla Owen, and William Pryor that produced the “Gang of 14″ compromise earlier this year. By swapping the obviously unqualified for the patently extreme, the President has rolled back the clock six months to the time of the “nuclear option” debate. He may well wish he hadn’t.
It’s certainly ironic that by choosing cronyism over substance, the President not only irritated his own base, but simultaneously nuked their talking points and made fools of some very pompous Senators. From CNN‘s Late Edition (10/16/05): (emp. added)
Wolf Blitzer: It’s not just the far right. There is mainstream conservatives, George Will, the columnist, Bill Kristol, the editor of The Weekly Standard, Charles Krauthammer who are saying this nomination should be withdrawn, it should be pulled because she [Miers] simply is not qualified.
Senator John Warner (R-VA): Guess what? Only 100 individuals, two of whom are right here, are going to make that decision. Now leave it to us. Give us the opportunity to offer this very fine individual with whom I’ve worked — privileged to know her; I respect her; I think she’s highly qualified — give her the opportunity to be heard before this committee. There is no question about anybody planning to withdraw this thing before that committee has the opportunity.
Blitzer: Were you comfortable with the whole notion of her evangelical Christianity being brought into this discussion when Karl Rove spoke with Dr. Dobson — Focus on the Family, an evangelical leader — and mentioned the fact she was an evangelical Christian and that sort of gives her qualification to be on the Supreme Court. Was that comfortable for you?
Warner: …But back again, it’s 100 senators. And, unfortunately, some of my colleagues — some who used to jump up and down and chant on the floor, “Up-or-down vote, up-or-down vote” — let’s give her an up-or- down chance before you express your reservations and views before that committee. Then draw your own conclusions. I look forward, hopefully, to casting that vote for her.
So much for 100 Senators rendering an up-or-down vote. The Republican party now resembles a monster truck, as it’s center-of-gravity is on the outside. Pressure groups and their outspoken leaders carried more weight than elected officials in the short-lived Miers nomination, and satiating their ravenous appetites played an important role in the selection of Alito to replace her. By folding in the face of their howls, the President has displayed his utter fealty to an extreme minority and burned the Republican Senators who placed loyalty before common sense by standing by Miers even after the White House had done the math. As much as I use this space to chastise Democrats for operating under expired assumptions and using outdated tactics, it seems that they haven’t quite cornered the market yet.
The Gang of 14 agreement was not especially helpful to either side, though it did allow the seating of three judges with views far outside the American mainstream. But that result was a function of its time: six months ago, the President still clung to a 50% approval rating, Katrina wouldn’t blow through for another few months to expose his administration’s lack of competence and compassion, Bill Frist was just getting ready to sell stock supposedly in a blind trust, and Tom DeLay and Scooter Libby were blissfully indictment-free. Continuing from the October 16th Late Edition:
Blitzer: The president’s job approval ratings are at record lows, Senator Warner, right now. 39 percent, according to this NBC News-Wall Street Journal poll approve of the way he’s handling his job. 54 percent disapprove. He’s got some major political problems right now.
Warner: Wait a minute. He doesn’t have them. And he has no control over them. He hasn’t got any control over the examination of the ethics in the House or question of our distinguished majority leader. He has no control over so many of those things, which are contributing…
Blitzer: But he has control over U.S. policy in Iraq…
Warner: That’s correct.
Blitzer: … over what was done with Hurricane Katrina. Those are issues that affect public attitudes.
Warner: Agreed. Agreed…
As Warner said, the President may not have “them” [problems] but “they” certainly have him. His selection of Alito may have bought him an extension on his control over the Republican Senate caucus, but the narrative has changed significantly from the days when half the country was gawking at his beautiful new clothes. He is no longer seen as honest, trustworthy, or sharing the priorities of the American people. Already Republican candidates for office are avoiding him and his ruling coalition is wobbly on issues as diverse as torture, spending, judges and more. A healthy majority predicts that his Presidency will be viewed as a failure, and a similar margin has expressed preference for Democratic control of Congress after next year’s elections. Coupled with so many Senators eyeing 2008 Presidential runs of their own, circumstances today share little with those from May. The Gang of 14 will most likely be viewed as a stop-gap deal that reflected the wariness of both sides at a time when the polls showed a 50/50 nation. Now that Republicans find themselves down 10-20% (Bush) and 10% (Congress), they feel the need to rev up the right-wing base as Democrats see an opening for vigorous opposition.
Political Wire notes that Gang members Mike DeWine (R-OH) and Ben Nelson (D-NE) have already made comments signaling the end of the truce even before they formally meet to discuss Alito. In stark contrast to Roberts and Miers, Alito has a public record that can’t be hidden by a White House obsessed with asymmetric information warfare, and his decisions are already coming under scrutiny for extremist views on access to courts, liability, regulation, and of course, abortion. The President’s instinct to pick a fight when he’s in trouble has worked well for him to date largely because he and his party enjoyed favorable poll numbers and friendly treatment from the media. As Democrats have shown, it’s hard to break old, familiar habits when times and conditions change. The President might just learn that lesson the hard way.
As with any battle in Washington, the initial winner might be the ultimate loser. Ask Lyndon Johnson. It was easy for the White House to use what little public information existed on Roberts to at least muddy the waters of his stance on Roe v. Wade, and his earlier comments (“settled law”) did the rest. The American people knew little more about Roberts at the time of his confirmation than they know about Alito the day after he was selected. His views on abortion will be known, and the majority of Americans who consider themselves pro-choice aren’t going to like it. But more important (with respect to politics) is the vise that supposed pro-choice Republicans, self-styled moderate Republicans, and purple-state Republicans up for election on 2006 face at the end of this process. Rhode Island’s Lincoln Chafee and Ohio’s DeWine are already in serious jeopardy in 2006, while Maine’s Olympia Snowe isn’t yet, but could be. Pennsylvania’s Arlen Specter and Maine’s other Senator Susan Collins are both pro-choice though not up for election in ’06. By forcing these Republicans to vote for Alito and worse, vote to break a possible filibuster, the President has imperiled his chances of holding the Senate in order to save himself.
Democrats have plenty to rally around this time, Alito’s views are just the beginning. As more Americans realize that their rights are unnecessarily placed at risk to bribe the religious right into voting Republican, the job of opposition becomes easier even for shellshocked Democrats. In killing the Miers nomination, the far right got what they wanted, but exposed their rabid obsession with railroading any nominee or official not in lockstep with their eliminationist ideals. They are certainly welcome to work toward advancing their goals (however abhorrent we may find them), but the spotlight hasn’t been kind to them in the recent past (the Schiavo case, Roy Moore, Dobson’s consultation with Rove etc) so their victory laps could well backfire.
There is an opening that Democratic leaders should not squander due to the volatile nature of the court. If you live in a state with a wavering Dem or one of the squeezed Republicans, get ready to dial for the cause. This nomination isn’t a done deal.