Skip to main content

We've been told over and over again that the odds are against us - that there's no way to get 41 votes and block the Confirmation of Judge Alito to the Supreme Court.

But I think we here on Dkos have come to realize that it's not   about the ends, it's about the means.  It's about whether we truly have the power to spur our Representatives to Fight the Good Fight.

We've been joined by Senator Kerry and by Senator Kennedy in the last few days. Feinstein and Clinton have been flipped.  The momentum is on our side, the tide is behind us -- it's time to put your backs into it lads.

More inspirational pep-talkiness over the flip.

This is a critical moment in American History.  The founding fathers clearly envisioned this day when they created the Senate.

Madison in Federalist #51

   It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.  There are but two methods of providing against this evil:

Ultimately the method developed in government to protect against the tyranny of majority factions was the creation o f the Super-majority and tools such as the Filibuster.  It must be remembered that these tools exist precisely to protect the rights of the minority, of the disenfranchised and the disaffected from the will of a powerful majority faction.

More from Madison.

   Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

It is quite ironic the Judges such as Alito call themselves "Federalists" and join groups such as the "James Madison Society" - when it appears they know little of either subject.

Judge Alito clearly represents the power of the (financial) majority against those of the minority, and threatens to tip the balance distinctly away from individual rights for the next several decades.

Whether he can or can't be defeated, Democrats, Liberterians and Consciencious Republicans who truly care about civil Liberties alike, must take a stand or we will all likely suffer the long-term consequencss of this nomination.

Alito has character issues, which have come out in his relationship to CAP and to Vanguard.  Either he truly supported the repressive goals of CAP, or doesn't and he commited fraud by listing his membership with that organization on his DOJ job application.

Either he is incredibly absent-minded, or he commited perjury when he claimed during his first judicial confirmation that he would recuse himself from cases in which he held a personal financial interest such as Vanguard.

He refused to answer questions about Roe arguing that  there are upcoming cases related to Roe currently before the court, yet he did comment on Reapportionment - despite the fact that there are several Redistricting Cases which will also soon be before the court. (Including the Texas Case involving Indicted Former House Majority leader Tom DeLay)  Ultimately, with a lifetime appointment, just about any case might come before the court.  We have to reform the confirmation process so that the nominee has to answer questions.  Answer that not neccesarily show how they plan to rule of future cases, but that make their method of thinking known, rather than play hide and seek with the Senate.

Besides his integrity, there is also his judgement to consider.

Alito on Federal Power and Responsibility from from the ACLU:

While in the Solicitor General's office, in a brief before the Supreme Court in Mitchell v. Forsyth, Alito advocated that the Attorney General, who had authorized illegal wiretaps of Americans, was entitled to absolute immunity for any personal liability.9


In addition to the extremely broad view of executive authority taken in his earlier writings, Alito has also taken a narrow view on congressional power in his judicial opinions. For example, in United States v. Rybar, Alito argued in dissent that Congress had exceeded its power under the Commerce Clause by making it a federal crime to possess a submachine gun, despite the federal government's long history of regulating firearms.


In another example of ruling to limit congressional authority, Alito wrote the majority opinion in Chittister v. Department of Community & Economic Development. In that case, Alito held that a provision of the Family Medical Leave Act (FMLA) entitling employees to leave when they or family members are seriously ill could not be applied against the states. Doing so, he wrote, exceeded Congress' authority under the Fourteenth Amendment.


There is every indication from Alito's record that his confirmation to the Supreme Court would tip the Court away from a balancing of powers toward undue deference to presidential and executive power. The basic civics lesson here is that there are three co-equal branches of government that should provide checks and balances to the others.
This concept is being fundamentally rejected by this Administration, the same Administration that now has nominated a jurist to the Supreme Court who not only agrees with its philosophy, but also has been instrumental in developing this approach.

Alito on Individual and Civil Rights:

There is often considerable room to interpret Supreme Court decisions and congressional statutes, and Alito has regularly used that room as an opportunity to narrow and restrict civil rights and civil liberties protections. For example, Alito:

  • Wrote a dissent in Planned Parenthood v. Casey arguing that a state's spousal notification requirement did not unduly burden a woman's right to privacy, a position later rejected by the Supreme Court;
  • Joined a dissent arguing that a student-led prayer at a high school graduation ceremony did not violate the Establishment Clause;
  • Wrote several dissents arguing for higher standards for plaintiffs seeking trial on their race, gender and disability discrimination claims;
  • Dissented from a decision ruling that the strip search of a suspect's wife and ten-year-old daughter exceeded the scope of the search warrant and was therefore unconstitutional;
  • Rejected a death row inmate's ineffective assistance of counsel claim where the trial counsel had failed to uncover substantial mitigating evidence - a decision later reversed by the Supreme Court;
  • Dissented from an en banc ruling in a death penalty case arguing that the prosecution had unconstitutionally used its peremptory challenges to exclude all the black prospective jurors;
  • Wrote a dissent arguing that a policy prohibiting all prisoners in long-term segregation from possessing newspapers, magazines or photographs unless they were religious or legal did not violate the First Amendment.

The wrap-up:

It is, of course, impossible to summarize a fifteen-year judicial career in a few bullet points or with a few cases. But it is also fair to say that these highlighted decisions illustrate a broader pattern of judicial decision-making privileging governmental power over individual rights. What is critically important to remember is that while Alito may state that he would be guided by stare decisis - the principle of following prior case law - as a Supreme Court Justice, unlike a court of appeals judge, Alito would create precedent according to his own interpretations, not be bound by it. [Ed. The very definition of an "Activist Judge"]

Recent revelations about presidential authorization of domestic spying, in defiance of the law, make it clear that the Senate cannot, and must not, approve a nominee who has little regard for the constitutional system of checks and balances. The Supreme Court is the final guardian of our liberties, and Alito has all too often taken a hostile position toward our fundamental civil liberties and civil rights.

The end (goal) of government is to protect the weakest of among us - not to pile on and crush those who stumble and fall as would a Judge like Alito. It is now high noon - time for those who may be in the numerical minority to stand up and fight the good fight against overwhelming odds. Win or lose - the battle must be waged.


Originally posted to Vyan on Sat Jan 28, 2006 at 09:38 AM PST.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

    •  Heavy Artillery for the filibuster fight (none)
      On a weekend, you may have difficulty reaching a real live person with whom to talk when you call the various senators' offices, but you can always reach their fax machines!

      Here is a flyer (in PDF form) that should be faxed to senators who are still sitting on the fence. click on the graphic at left, or go to this diary for more information.

      Keep up the fight! We must not lose this one!

      Conservatives are engaged in one of the oldest exercises in moral philosophy: the search for a superior justification of selfishness.-- John Galbraith (roughly)

      by Dan Hrkman on Sat Jan 28, 2006 at 09:49:15 AM PST

      [ Parent ]

  •  Excellent. (none)
  •  it's the result that counts (none)
    there's no point in falling on your sword to show you can.

    Republicans aren't evil. They're just wrong.

    by AnnArborBlue on Sat Jan 28, 2006 at 09:42:54 AM PST

    •  That's where I disagree... (none)
      as would many Samurai.  

      Showing that you have the courage to follow through on your convictions, particularly against insurmountable odds, is no small thing.


      •  not when it's harmful (none)
        and you're right that a successful filibuster/unsuccessful block of the Nuclear option is no small thing.

        It's an incredibly harmful thing for the types of judges that will get on the lower courts.

        Republicans aren't evil. They're just wrong.

        by AnnArborBlue on Sat Jan 28, 2006 at 09:47:19 AM PST

        [ Parent ]

        •  Is it? (none)
          It's not like the Republicans haven't made every court appointment a partisan issue for the past 12 years.  How many of Clinton's nominees did they block -using arcane tactics such as the "Blue-Slip" rule, or simply refuse to even have a hearing?

          Then there's Harriet Miers...

          Notice the "Up or Down Vote" mantra has died and silent death.


          •  they've made them partisan (none)
            but they haven't gotten everyone they want, because of the threat of a filibuster. People are too willing to sacrifice that tool just so dems can prove they have some backbone in my opinion.

            Republicans aren't evil. They're just wrong.

            by AnnArborBlue on Sat Jan 28, 2006 at 09:58:06 AM PST

            [ Parent ]

            •  Ah, yes the Nuclear Option... (none)
              Well, I think you have to think long-term.  If the Nuclear Trigger gets pulled - and you'll actually note theres been a near total absense of talk and wonk about this threat - all the better.  It shows who the Republicans truly are, that they would disrupt 200+ years of Senate tradition in order to have their way.

              They can't argue that Republicans haven't ever filibustered a Democratic Supreme Court Nominee - there's still Abe Fortas.

              I think that the only option that works against the Democrats is to stand-down and get steam-rolled once  against without even trying, because ultimately in order to get what we want we have to Take Back Congress - and we can't do that if people don't know what their really voting for, if they don't know where you stand and what you will and won't fight for.

              Let them pull that trigger and we'll beat them soundly about the head and shoulders with it in November.


              •  no one is going to care (none)
                it's an issue that the public just isn't that concerned about.

                When it was in the papers last time around they polled on it. And most people opposed the rule changes. But they also asked how closely people were following it:

                Very closely: 16%
                somewhat closely: 31%
                Not too closely: 15%
                Not closely at all: 37%.

                People just aren't all that interested in it, and I cant see them caring enough to make it a good campaign issue.

                Republicans aren't evil. They're just wrong.

                by AnnArborBlue on Sat Jan 28, 2006 at 10:11:59 AM PST

                [ Parent ]

                •  sorry (none)
                  forgot the link

                  Republicans aren't evil. They're just wrong.

                  by AnnArborBlue on Sat Jan 28, 2006 at 10:12:47 AM PST

                  [ Parent ]

                •  At that time, it didn't involve the Supreme Court (none)
                  .. who cares about a few appellate Judges?

                  Now we're dealing with a situation where four states are about to introduce anti-Roe legislation on the presumption that they'll receive favorable review on a Roberts/Alito court.

                  This confirmation has the potential to directly impact millions of people in very short order.


                •  I disagree, and here's why (none)
                  There are other valid sources of information besides polls.
                  In fact, I have at least a slight distrust of most poll data.

                  Something remarkable happened around the issue of the nuclear option last year, something I've never seen talked about. In addition to the many top-down engineered protests we had, sponsored by groups like MoveOn (and I'm not saying that kind of protest is invalid) spontaneous protests erupted on campuses across the country. No one told them to do it. They just did. It started (I think) at Princeton. They began a mock filibuster in support of the filibuster. They kept on for 385 hours. They got online to their friends on other campuses, who began filibustering. Universities began to have friendly competitions with each other, seeing whose "filibuster" would last longest. They uploaded their speeches and readings to the web; they took pictures of their filibusters and shared them. By the time of the so-called compromise, 50 universities were protesting, in 35 states, and every indication was that it would keep spreading. The greatest density of protests? In Republican Maine. Five campuses there were protesting.

                  Now maybe I just haven't been paying attention, but I have been a grassroots activist since the 80's, and I haven't seen a spontaneous nationwide response like that since the anti-apartheid movement. This truly came from the grassroots, not the "grassroots" of MoveOn or United for Peace and Justice--with whom I have no problem, I repeat. It's just that there's a difference between a big national group organizing the grassroots and the grassroots rising up and saying "No." And what issue inspired them to do this?

                  Dear God, it was an arcane Senate rule! Conventional wisdom would state that people don't care unless it affects their pocketbook or unless someone they know might get killed (i.e., the economy or the war.) But, for the first time--at least that I've seen--for twenty years, the grassroots rose up on its own--for a principle of American democracy. They figured it out. They figured out where it was leading--to a one-party system. And America said--uh-uh, not what I signed up for.

                  It was then that I thought--Hallelujah, we have a pulse. I can stop yelling "Clear!" and get these things off my hands. We're not out of the woods by any means, but we are alive.

                  Between that and the way people stood in line for ten hours or more to vote in crappy weather last year--I will never again subscribe to the easy belief that Americans are a bunch of soul-less, brainless couch potatoes who don't give a crap about anything other than their paycheck and Survivor:  the lost episodes. That is a frame, ladies and gents, and it serves the right. It is not the truth.

  •  Here's the thing (none)
    While in general terms, putting up a fight with the filibuster would definitely show some backbone, and I would be all for that, the problem is, Dems will not look like they are fighting or standing up for something if 10-15 Democrats end up voting for cloture! Do you realize how ridiculous it is going to look with 30 Dems filibustering and 15 voting against their party when they vote to end the filibuster? That doesn't look like a fight, that look like pure WEAKNESS and DISARRAY! Several Dems have already said that they will vote for cloture, on top of the fact that it will not keep Alito off the court, we we look weak and ridiculous trying to filibuster while many Democracts vote with the Republicans. It will not show backbone, but disarray.


    by michael1104 on Sat Jan 28, 2006 at 09:45:26 AM PST

    •  It shows... (none)
      where each of the Democrats Stand when it comes to executive overreach.  Again, I think the principle counts for more - because in the end it's taking a principled stand that will ultimately determine the direction of the party.  Will it continue along the direction of Republican-Lite, or will the party begin to stand up and define itself under it's own terms.  It may be true that a minority within the party who wish to appease the right may torpedo the effort.  

      Fine, that's their choice - and it's our choice at the next election to decide if we wish to continue having them as our Representatives.


      •  yes (none)
        It's their choice, and it's a choice that will ruin it for everyone. The headlines are not going to be: "Democrats filibuster, show spine!" or "Dems try to stop Alito in principled fight." They will be along the lines of "Democrats in disarray as 10 Senators turn back on Kerry" or along those lines. The narrative will not be that Democrats finally show a spine, just the opposite. And I think pro-filibuster people tend to give way more credit to the American people to actually figure out any of what you said above....

        I HATE REPUBLICANS, HATE HATE HATE THEM!!!!!!!!! UGHHHHH [-5.50, -4.69]

        by michael1104 on Sat Jan 28, 2006 at 09:56:15 AM PST

        [ Parent ]

        •  I give no credit to the media.. (none)
          because they write the headlines and cement the talking-points, but only if you let them.

          The only way defeat this is to catapult the propoganda that this is exactly what the framers wanted and expected.  It's what we need in order to protect our republic from the tyranny of the majority.

          I fully understand that the Repubs and Corporate (Whore) Media are going to frame it against the Dems, fine.  That's the risk, but truly - they've already lost the House, the Senate and the Presidency -- if you can't go to the mat to protect  the Judiciary, when do you go to the mat?


  •  Love it! (none)
    "'s pols don't even bother to get you drunk before they screw you..."

    I actually had a friend call an Ohio Senator's office and get hung up on. (I don't know if it was DeWine or Saxbe--could have been either, I suppose.)  It shows, they don't NEED us any more. There's nothing between them and the loot.

  •  Thank you for reminding us (none)
    that the Founders were a lot smarter than simply equating democracy with majority rule.

    The strength of a democracy rest precisely on the degree to which it is sensitive to the minority.

    The filibuster may not be in the Constitution, but its 200+ Senate tradition merits it as a valuable tool for preserving a stable representative government.

    "Checks and balances" is such a boring, tedious term.  But it may just be the central foundation of what determines the longevity of a nation.

    (of course, this is why Bush's spying is so disturbing, even if conventional wisdom says that corruption is a better political club to pound on; his "inherent war power" nonsense is truly a threat to our system of government.  Jefferson would have been appalled.)

    "A president who breaks the law is a threat to the very structure of our government." - President-Elect Gore

    by Republic Not Empire on Sat Jan 28, 2006 at 09:51:35 AM PST

  •  what if we ALL gave 2 cents online to key Sen's? (none)
    I diaried this idea here

    I had to destroy my tinfoil hat because it was beaming coded messages into my brain.

    by stevelu on Sat Jan 28, 2006 at 10:04:15 AM PST

  •  I would prefer... (none)
    not to waste my energy on fights I know I cannot win. We need to save our strength for those engagements where we have a realistic chance to win. As the late, great Vince Lombardi once said, "Winning isn't everything. It's the only thing."

    If we don't have the votes in Congress to defeat Alito, then let's work our butts off to get control of Congress. Then, we can use that control to impeach judges, like Alito, who are unwilling/unable to keep their oaths of fealty to the U.S, Constitution. Let's keep our eyes on the prize and not get too distracted by the smaller skirmishes along the way.

    The friend of my enemy is my enemy. Dump Chafee in '06.

    by jayatRI on Sat Jan 28, 2006 at 10:19:26 AM PST

  •  To use a sports analogy (4.00)
    I've gone into many a tennis match knowing the odds were good I wouldn't beat my opponent, but he or she sure as hell going to work for the win.  I wasn't going to just give it away.  Also, by playing against stronger players, it makes you stronger over time.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. - 9th Amendment

    by TracieLynn on Sat Jan 28, 2006 at 10:29:46 AM PST

  •  agree and disagree (none)
    I certainly agree with you that the fight must be waged, but look, this is politics; it's winning that counts.  

    I'm always hearing people say they want to see the Dems show some spine, but we need so much more from the people we elect.  The Dems need to learn how to be vicious - how to wage war, because politics is war.  

    It's no good putting up "a little fight", as Markos puts it; if you're not going to fight as hard as you can, you might as well not fight - because the Repubs are playing hardball, and you're going to lose.  

    We need leaders who will lead us to victory and give us some hope.  Losing is for losers.

    •  You have to take the long view... (4.00)
      that this fight isn't just about this fight - it's about the entire war.  We may lose this hill, but we have to let the enemy/opposition know how hard we're willing to battle for each and every peice of ground.

      Then we use that conviction to continue to rally the troops for the next fight, and the next - and eventually the next election. Playing continual retreat to the red-advance gets us nothing.  Besides, what have we got to lose - Congress?  Ha!


Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site