I'll begin by stating the obvious, a filibuster will be necessary here. Armando posted earlier the
Gallup poll about the Alito nomination, which has some pretty promising numbers within it. However, in order to take advantage of those numbers Democrats must establish a clear coherent reason that the public can easily wrap their hands arround and understand as to why we would oppose this nomination. Alito's opposition to
Roe would be a reasonable such argument, but convincing the public that it is true may prove to be a difficult task. Whatever we do Democrats cannot continue to do what we've already begun. We cannot continue to assert that he's a "extremist" or that he's "out of the mainstream." That sounds like what it is (be it true or not) a talking point. Anybody can recognize this, and the lack of subtlety or coherent definition will make it very difficult to convince the public that Alito is in fact "out of the mainstream. A better, more coherent explanation is needed to support a necessary Democratic filibuster.
It is my perception that the public consistantly gives judicial nominations the benefit of the doubt. Unless it is clearly presented that someone is too extreme, the American people will support the President's judgement. There are Four important numbers in the Alito poll that
Gallup conducted, that
Armando did not mention earlier.
* About half of those interviewed Tuesday night believe Alito's views are mainstream, while a quarter think his views are too extreme, and another quarter have no opinion.
* The public is evenly divided as to whether Alito probably would or would not vote to overturn Roe v. Wade. Thirty-eight percent believe he would, and an equal percentage think he would not, with the rest offering no opinion.
* If it becomes clear Alito would vote to reverse Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%.
* If most Senate Democrats oppose the nomination and decide to filibuster against Alito, 50% of Americans believe they would be justified, while 40% say they would not.
It's important to note that the first and second bullet points here confirm my postulate that the public gives judicial nominees the benefit of the doubt. The third one demonstrates that if we make our case correctly Democrats have public support for a filibuster.
So what is the correct case? This is an interesting question, the poll supports the idea that if Democrats can successfully convince the public that he will vote to overturn Roe v. Wade, they do not want him confirmed. So hammering away on Alito's apparent opposition to Roe might work, but can Democrats really convince enough people that he would vote to overturn Roe v. Wade? It seems unlikely given that only 38% currently believe that he would overturn it that Democrats could make too much progress, especially given the ambiguities that always come from judicial opinions.
No, I think a much better case can be made as LiberalOasis does, that Alito is hostile to equality This seems to be a recurring theme in his opinions that rears its ugly head over and over again. ThinkProgress summarizes some of Alito's 3rd Circuit opinions.
ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by "immuniz[ing] an employer from the reach of Title VII if the employer's belief that it had selected the `best' candidate was the result of conscious racial bias." [Bray v. Marriott Hotels, 1997]
ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito's dissent was so restrictive that "few if any...cases would survive summary judgment." [Nathanson v. Medical College of Pennsylvania, 1991]
ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) "guarantees most workers up to 12 weeks of unpaid leave to care for a loved one." The 2003 Supreme Court ruling upholding FMLA [Nevada v. Hibbs, 2003] essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law. [Chittister v. Department of Community and Economic Development, 2000]
ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]
The recurring theme here? Hostility to equality. I'll let LiberalOasis finish it out.
The opinion that people will focus on the most was his desire
to uphold a spousal notification provision in a PA abortion law that
severely restricted reproductive freedom.
Most will look at his opinion to indicate opposition to Roe, and they should.
But fundamentally, it was an opinion that was dismissive of women's independence.
...
He tried to make it easier for employers accused of sex discrimination to get the cases thrown out, saying that cases don't automatically deserve to go to trial when employers make excuses for discrimination and plaintiffs cast doubt on them.
...
The majority said
Alito's "position would immunize an employer ... if the employer's
belief that it had selected the 'best' candidate, was the result of
conscious racial bias."
He sought to deny our democratically elected Congress the authority to have the Family Medical Leave Act apply to state government employees, arguing that there was no discrimination in employers' sick leave policies.
(That's a view that was overruled by the Supreme Court in an opinion written by Rehnquist. Yes, he's to the Right of Rehnquist.)
Perhaps what's most disturbing is his view that girls sexually abused at school by other students cannot take legal action against the school for failing to protect them.
For Sandra Day O'Connor to be replaced by a man who has been defined as "an activist conservatist judge [who] has looked to be creative in his conservatism" will be a huge step backwards.
For the sake of the American ideal of equal protection under the law, bring out the filibuster.
Democrats cannot win this battle with a filibuster unless the public supports our cause. It seems to me that it would be far more convincing to demonstrate a recurring pattern of Alito's opposition to equality than to take a few scattered cases and statements to try to convince the public of his opposition to
Roe v. Wade.
Roe is not at stake here. If Alito is confirmed,
Roe will still stand, Kennedy will join the four more liberal members of the Court to uphold
Roe v. Wade, no, there is much at stake in this nomination, but that is not one of those things. Our attention would be much better focused on the recurring pattern where Mr. Alito clearly does not have any respect for the concept of equal rights under law.
This is a compilation of several posts from my blog.