FIGHTING ALITO….Over at Crooks and Liars, Glenn Greenwald says:
The Democrats are a party in urgent need of a good fight. And the Alito nomination presents the perfect opportunity for Democrats to demonstrate that they are willing to wage a real battle for the things they believe in. Two core Democratic principles, at least, are at stake in these hearings, and are clearly threatened by the Alito nomination:
(1) whether we live in a country where the President has the right to declare himself to be above the law and can freely violate whatever laws he wants; and, (2) whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court….If Democrats are unwilling to fight for these principles, what are they willing to fight for?
Roughly speaking, I agree with Glenn. The problem is, how do we wage the fight? Here’s what Alito said today about the president being above the law:
In response to questions from Sen. Patrick Leahy of Vermont, the top Democrat on the Senate Judiciary Committee, Alito said that “no person in this country is above the law.” But he said some issues related to executive powers fall into “a twilight zone” where presidential authority is at a low point.
And here’s what he said about privacy and abortion:
Alito said he agreed “that the Constitution protects a right to privacy,” the main underpinning of the Supreme Court’s 1973 Roe v. Wade ruling that legalized abortion nationally….If the [abortion] issue were to come before him today, the first consideration would be precedent, he said. “If the analysis would get beyond that point, I would approach the question with an open mind,” he said.
Is Alito fudging furiously? Probably. But it still doesn’t give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. So what’s the battle cry?