Alito, Bush and the Democrats: What did you expect?

It's no surprise that Bush nominated someone like Alito. It shouldn't be a surprise that Democrats are voting against him.

Published January 24, 2006 9:13PM (EST)

As he cast his vote in favor of Samuel Alito today, Republican Sen. Lindsey Graham asked, "What did you expect President Bush to do when he won?"

It's a fair question, we suppose, just not a particularly relevant one in the context of how senators vote on Alito's nomination. Yes, George W. Bush made it clear as a candidate that he'd appoint Supreme Court justices "in the mold" of Antonin Scalia and Clarence Thomas. By nominating Alito, the president has pretty plainly kept that promise. He has picked a man who has said that he personally believes "very strongly" that there's no right to an abortion in the U.S. Constitution, who won't say whether he still thinks that way, and who dances around the question of whether Roe v. Wade is settled law but hints -- with the code words "inexorable command" -- that he thinks that it's not.

So yes, Sen. Graham, Samuel Alito is pretty much what we expected from Bush. That means that people who voted for Bush in 2000 and 2004 maybe ought to ask themselves today if they weighed things correctly then. If you want to see abortion rights protected -- as a substantial majority of the American public does -- but you voted for Bush because you really liked your tax cuts or you thought Bush would keep you safe or you just didn't trust John Kerry, well, how are you feeling today? Was the trade-off worth it? What did you expect President Bush to do when he won?

Those are fair questions to put to Bush supporters today. But as we said, we have a hard time seeing how they have much of a bearing on the way Democrats ought to vote on Alito's nomination. It's probably safe to assume that neither Patrick Leahy nor Joe Biden nor Ted Kennedy nor Dianne Feinstein voted for Bush. They knew what to expect from him, and they didn't like it. Neither did their constituents, which explains a lot about why Leahy and Biden and Kennedy and Feinstein keep getting reelected and why Vermont and Delaware and Massachusetts and California stayed blue in 2004.

You can make an argument that the president is entitled to some senatorial deference when it comes to Cabinet picks. The guy runs the executive branch, so maybe there's a rebuttable presumption that he gets the people he wants to work for him there. But the judiciary isn't part of the executive branch. It's the independent third branch of government, and it's hard to articulate a reason why the Senate must defer to the president's judgment on how it should be staffed. So yes, Bush has nominated exactly the sort of nominee that Democrats probably expected. But that doesn't mean that they're bound -- legally, morally or otherwise -- to put such a nominee on the court.

To the contrary, most Democrats in the Senate have run for election and reelection by promising that they'd do what they could to prevent a president from packing the court with judges who will vote to overturn Roe. By voting against Alito -- as almost all of them now seem likely to do -- they're keeping their campaign promises just as surely as Bush did when he nominated him. As Feinstein put it today, "If one is pro-choice in this day and age, in this structure, one can't vote for Judge Alito. It is simply that simple."

Which is another way of saying: What did you expect Senate Democrats to do when they won?

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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