There is a potentially pesky fly stuck in the Republican’s salve. It’s called choice, a woman’s constitutionally protected right — for now — to have an abortion if she so chooses. Seventy percent of Americans polled say they would oppose Alito if he favored overturning Roe v. Wade, which established that right. No wonder nobody can get a straight answer out of him, or Roberts, on that one. To those who say the court would never overturn Roe we ask, why not? We’re the only advanced industrialized nation in the world that sanctions capital punishment. Huge numbers of people reject Darwin. Multitudes believe in the coming of the rapture. The president believes he’s God’s messenger. We’re the world’s richest, most powerful nation and we’re in the thrall of a wave of superstition that just 20 years ago would defy imagination. Will the fact that more people oppose overturning Roe than voted for Bush hold the court in check? That’s a bet we don’t want to take. But we have no choice.
Even though the Democrats on the Senate Judiciary Committee had little hope of stopping Alito’s nomination, they never laid a glove on him. (We really don’t understand why Mrs. Alito was crying! And it is worth noting that it was a question by a Republican, Florida senator Lindsey Graham, that pushed her over the edge.) Senator Joseph Biden of Maryland was a windbag. Patrick Leahy of Vermont, Ted Kennedy of Massachusetts, and Herb Kohl of Wisconsin were less gaseous but no more effective. The reason it’s important to make this criticism is that the Democrats need a new playbook as badly as the nation needs to get rid of the Republicans, and yet there is no relief in sight on either horizon. Perhaps the only glimmer of hope in the Alito episode comes from the call for a filibuster by Russ Feingold of Wisconsin, a quirky and independent senator who regularly pisses off members of his own party as well as liberal interest groups because he strongly believes that presidents should, by and large, get to name people of their own choice. That’s why he voted to approve the appointments of John Ashcroft as attorney general and John Roberts as chief justice. Feingold has concluded that Alito’s appointment would be “dangerous.” As a senator who helped hammer out the anti-filibuster agreement that led to Robert’s confirmation, Feingold’s opposition to Alito should help convince those who would accuse Democrats of “playing politics” with the Supreme Court that opposition to Alito is a matter of principle. But we won’t bet on that either.
: The Editorial Page
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