Who's to blame for Samuel Alito?

It's easy to point fingers at Democrats who won't filibuster, but they weren't alone in getting us here.

Published January 27, 2006 5:49PM (EST)

It's easy to heap scorn on Democratic senators who say they'll vote against Samuel Alito's nomination but won't vote to sustain a filibuster: They're making a show of a "no" vote but refusing to do the very thing that might give that vote meaning. But the real problem here isn't that the Dianne Feinsteins of the world are all talk and no action. John Aravosis argues today at AmericaBlog that it's the progressives -- in the Senate and in the advocacy groups, too -- who haven't succeeded in creating a public-opinion environment that would grow a filibuster.

There was fertile ground there.

In a Gallup poll taken before Alito's confirmation hearings began, 56 percent of the respondents said they wouldn't want to see Alito confirmed if they believed he'd vote to overturn Roe v. Wade. Yet Alito wrote in 1985 that he "personally" believed "very strongly" that the Constitution provides no right to abortion, and he did less than nothing during his confirmation hearings to comfort those looking for signs that Roe is safe. He refused to say -- as even John G. Roberts had -- that Roe was settled law, and he suggested, through code words about stare decisis, that it probably isn't.

In a more recent Gallup poll, a slim majority of Americans said they believe that the president was wrong to engage in warrantless spying on Americans, and 58 percent of them said they'd like to see a special prosecutor appointed to investigate. Yet Alito has given every indication that he takes an extremely deferential view of the power of the executive branch. Although Alito said during his confirmation hearings that he had used a poor choice of words when he wrote of the "supremacy" of the executive branch in 1985, his court rulings since then show that the words he used reflected all too well the approach he takes to the law.

So why isn't there more of a public outcry about Alito? The volume is high in the blogosphere, but it's hard to hear much of anything out there among the people. When a Democrat in a state as blue as California feels free to take a pass on the filibuster, you can bet that she has done the math and figured out that the public isn't going to demand anything more of her. Why is that? Why hasn't more of the public connected the dots on a nominee who, if the polling is to be believed, ought to be pretty troubling? The Democrats on the Senate Judiciary Committee deserve a lot of the blame; during the confirmation hearings, they spent far more time puffing themselves up than they did pinning Alito down. The media is an obstacle; fairly or not -- and we're guilty of this, too -- it has treated the Alito confirmation as a done deal from the very beginning.

But Aravosis says the problem, and maybe the biggest one, is that no one came up with a sustained and successful campaign that shaped public opinion before John Kerry started making phone calls from Davos, Switzerland.

"It's possible to remain a Democrat and win, but you can't just vote the right way," Aravosis writes. "You have to create an environment in which the public agrees with and supports your vote. Unfortunately, that didn't, and isn't, happening with this Alito confirmation. The big non-profits got millions, and what do we have to show for it? The Democratic senators held a week of hearings, and other than Joe Biden's chance to bloviate as usual in front of the cameras, what did they accomplish?

"Some day Democrats will learn what Republicans have long known. It takes a campaign to win an issue. When the Democrats and their traditional million-dollar non-profits learn that lesson and implement it, then I'll be all in favor of a filibuster. But a filibuster without the campaign will not only fail, it will convince already spineless Democrats that the filibuster itself was a mistake because it was a filibuster, not because the filibuster wasn't supported with a real public relations campaign. Democrats will learn the wrong lesson from their failure, and they'll end up even wimpier ... next time."

Maybe this is just the usual circular firing squad reporting for duty. Or maybe Aravosis is raising points that Democrats and their allies ought to be debating seriously as they look past the Alito nomination and on to whatever comes next. We're interested in what you think, and we're sure you'll let us know.

By Tim Grieve

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

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