In the wake of the Alito hearings, mainline pundits are calling his nomination a done deal. Alito didn't spew obscenities or green bile. He didn't admit that he'd reverse Roe v. Wade or vow to proclaim George Bush Lord Emperor. Rehearsed and coached by committee member Lindsay Graham (and by some of the same lawyers who justified Bush's NSA wiretaps), he instead spoke deferentially and humbly about respecting legal precedent and separation of powers, while Republican committee members made him out to be a mix of Solomon and Mother Teresa. Much like Clarence Thomas during his hearings, Alito dodged the tough questions with evasions and platitudes, suffered convenient memory lapses on areas he couldn't dodge, and justified controversial past stands by saying he was just trying to be a team player. We know little more about him than before--except about his capacity to dissemble.
Meanwhile, in a galaxy far away, former Congresswoman Liz Holtzman, who sat on Nixon's impeachment committee, just wrote that Bush's defiance of the law through illegal wiretapping, lying about the reasons for going to war, and condoning of violation of US law about detainee abuse constitute grounds for impeachment. Holtzman said impeachment should never be undertaken lightly. She found "voting for [Nixon's] impeachment to be one of the most sobering and unpleasant tasks I ever had to undertake." But she said it was necessary in Nixon's case, and merited in Bush's as well. A Zogby poll taken last November, just before the wiretap scandal broke, found that 53 percent of those questioned favored impeachment of President Bush if he lied about the war in Iraq.
If there's a chance to stop Alito, much less reclaim our democracy, we need to bring these realities together. The filibuster just might be the vehicle to do that, as Senators could spell out the links between link runaway executive power and a nominee who has consistently ruled and spoken in favor of the unaccountable expansion of that power. Suppose the Democratic Senators actually used a filibuster to talk about the Alito nomination in its broadest context. They wouldn't read the phone book. They wouldn't get lost in an endless maze of legal rhetoric about stare decisis. They could talk about how they'd have readily accepted a more moderate nominee, much as Clinton nominated Steven Breyer and Ruth Ginzberg in part because Orrin Hatch said he'd accept them as preferable to other proposed justices. They'd use the filibuster to educate as well as impede.
However they label their actions, suppose the Democrats started debating the nomination, and didn't stop, in the process addressing the real roots of why Alito would be so destructive. They could read from articles and books about this administration's abuse of presidential power. They could talk about whether we really want government officials to be able to strip us of our rights at will, listen in on our phone and email conversations without a court order, and infiltrate the citizen groups through which we gather peacefully to express our beliefs. They could talk about the choices women were forced to make when abortion was illegal, what it's like to be discriminated against, then told you don't meet an impossible burden of proof, and whether police should be able to shoot unarmed 15-year-olds who flee after stealing $10. They could talk about the Sago mine disaster, and the fruits of a politics where unions are busted and regulations gutted at every turn. They could tell the stories that bring seemingly abstract issues of jurisdiction and constitutional interpretation to life, and make clear their real-world consequences.
In the process they could remind America that this president, with this track record of lies, deceptions, and favors for the most destructive private interests, deserves no presumption of deference. And that when he nominates someone, like Alito, who will only further his abuses of power, Senators have a moral responsibility to oppose him however they can. The wink-and-nod games of the hearings were designed to obscure Alito's record and frame him as genial and reasonable. If the Democrats accept this, or even quietly vote against him without further protest, they further the lie that this is an ordinary nomination in an ordinary time. If they filibuster and stand firm, there's a chance that just enough of the now politically weakened Republicans will back down and not risk putting themselves on the line to destroy nearly 200 years of Senate tradition for the naked goal of increasing their power. But Democrats have to take the risk of standing strong, and we as ordinary citizens have to do all we can to convince them to do so.
Paul Rogat Loeb is the author of The Impossible Will Take a Little While: A Citizen's Guide to Hope in a Time of Fear, named the #3 political book of 2004 by the History Channel and the American Book Association, and winner of the Nautilus Award for best social change book of the year, and Soul of a Citizen: Living With Conviction in a Cynical Time. See www.paulloeb.org