Alitosis: This is What I said on Nov. 16

I re-print this from the November archives so I can revisit the many specific predictions I made before. Those revisitations are at the end, in italics.

Alito Filibuster Question

Is it to be Bad Breath, or just a Waste of Breath?

The proper name for the foul humour which seems likely to afflict the body politic next year is “Alito-sis” (hyphen optional). It’s the smell of the Sargasso Sea; a zone in which movement slows to a crawl, direction seems a meaningless question, and the stench gets on everybody. That’s where we’ll be, if Alito’s nomination brings a prolonged filibuster, leading to some version of a Nuklar Option being implemented, and the Democrats retaliate by throwing the Senate’s business into total disarray.

The scenario could easily leave a cloud of noxious gas over the country through Election Day, 2006, with voters afraid to come to the polls without a gas mask. Under those circumstances, I don’t think the Democrats would benefit: they don’t have the werewithal to issue the needed 75 million stink filters, nor the Category 5 breath of fresh air that would be needed to dispel the fog of Post-Nuklar War. It’s a mofo.

Confirmation Trivialities

I recommend to Harry Reid that he announce—I’m skipping the part about waiting for the hearings and the Committee vote—that he will observe the “Two Speech Precedent”. That will give an eventual end date to the ceremonious Beating the Bushites that will precede Alito’s confirmation:
by about 60-40, I’d predict, and will do it according to Senate Rules and precedents, which is what he wants. A couple of Senators who are prepared to Nuke a Filibuster (from the French term for "bootless") will actually end up voting against Alito. Senator “'Profiles in Courage'-fodder/loser in ‘06” DeWine will be one. McCain will not.

Reid should save the Balls-Out, Protracted Filibuster, Followed by Post-Nuklar Disarray Scenario (a name almost worthy of Herman Kahn) for the replacement for Justice Stevens or Ginsburg, if that should happen before we can all safely enter the post-Bushite era.

I suggested in a previous post that the key question which all the Senators will try to solve, for any proposed nominee to replace Sandra O’Connor, is to think of a compass and ask, how many milliseconds or degrees of separation will there be between her course for the "Judicial Ship of State" and the Nominee’s. On the conventional liberal-conservative axis (number line? time line?), Alito’s nomination changes that game somewhat—he is clearly far to the right of O’Connor’s ideologically contiguous justice, Anthony Kennedy, way over there in the distant zone of Scalia/Thomas-ville (as x goes to negative infinity, or to the year 1930).

So, if confirmed, the question is modified to the difference between Kennedy and O’Connor—that is how far the course of the Court’s opinions will deviate. The pressure will be on Kennedy, and he appears to be a vain vacillator.

I have a lot of ambivalence about looking at the Supreme Electorate in such uni-dimensional terms, though. While I accept that the Court does not need another Scalia or Thomas—the 1-2 combination of the literate bomb-thrower and the knuckle-walker is more than adequate to represent their micro-constituency (you can pick either justice for either role)-—there are other ways to look at the Court and what it does.

From my point of view, I say “fie” on both houses! The two most significant decisions of the last session of the Court--on using eminent domain to support private interests, and to hold federal law superior to state referenda and legislation allowing medical marijuana—were driven by the “liberal” judges in the wrong direction. OK, they weren't of the level of significance of Gore v. Bush (what exactly was the judicial philosophy of the majority in that case, now?), but that one doesn't come up in these discussions. After all, the Electoral College and our voting systems couldn't lead to another snafu like 2000, could they? (That was "scorn", not sarcasm, though I admit a bit too facetious.)

I think that we need to look a little past the optics of the '60's in evaluating our Court politics. For example, we should be a little more careful in our support for expanding federal powers when the hands holding the sceptre are so shaky.

The question I want to hear asked of The Nominee is: what happens when our government is found to be in violation of international law, but following federal statutes? Until I hear someone say, "we are bound to accede to international law", I would urge any Senator to vote against any Nominee.

Filibusters are OK as long as they don't get in the way of important business. If there is any, and I'm 99% convinced there isn't any left for this Congress.

The other question I want asked of The Nominee: Can we get a do-over for 2004?

OK, "bad breath", alito-sis, is the order of the day. The 60-40 with NO NUKES was within two votes of being spot on; the key vote was the cloture, though, which went much more decisively in Cloture/Alito-sis/Bushite direction because of the influence of the Gang of 14 and like-minded Senators like Bingaman and Rockefeller, who recognize the deterrence issues.

The bad news from the prediction accuracy point of view was the performance of the Republican moderates. Once the Dems had teed it up as a pure political showdown with the party-line vote in Committee, the Brams fell into line tout suite.

Reid played it well, as I thought he might: giving his vote for the filibuster, along also with moral support in the doomed fight against Alito, but making it clear that the Kennedy/Kerry fiasco was not his idea whatsoever.

More comments to follow--as Comments.