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The Alito Kabuki

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I’ve noted several times that according to many conservatives apparently the gravest insult of Samuel Alito is to point out that he agrees with them. Dahlia Lithwick has the finest distillation of this pathetic phenomenon that I’ve seen yet:

So, here we have a lawyer putting forth a legal opinion on a constitutional matter, and now he and his supporters seek to reduce it to the functional doctrinal equivalent of, “You simply must tell me what’s in this artichoke dip.”

[..]

Might it be that your calls for this big old national bull session over activist judging are as cynical and results-based as the holding in Roe that you so revile? Could it be that the national polls—which indicate robust support for Roe and strong opposition to justices who’d reverse it—have rendered this conversation too dangerous? Or is it the prospect of the national backlash that would follow from actually reversing Roe that has rendered you speechless? Aren’t you eager, finally, to defend the GOP platform, which overtly promises that the president will appoint judges who will defend the “sanctity of life” and overturn Roe? Or are your notions of scrupulous judicial purity less compelling in the cold light of political reality?

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Conservatives have argued that there is a double standard at work here, that Ruth Bader Ginsburg was confirmed despite her “radical” espousal of abortion, polygamy, and other mad notions. But of course, besides the fact that so many of the claims made about Ginsburg’s views are false or distorted, Ginsburg was willing to discuss her views of abortion and women’s rights quite openly. Also, her views were in line with the law. What part of her confirmation hearing makes it acceptable to retreat to smoke signals when the nominee opposes Roe?

A few weeks back, I optimistically suggested that the death of the Harriet Miers nomination also spelled the death of coded speech about abortion. I asserted that the GOP base that had scuttled her confirmation would no longer accept coded messages about Roe. But here’s the flip side: Movement conservatives will no longer accept coded messages about nominees and Roe, but they are not brave enough to send clear ones when it matters the most.

This couldn’t be more right. To all the conservatives who (when a Supreme Court nomination isn’t pending) say that eveyone knows that Roe is bad law, or that the Court is usurping “the will of the people” or whatever, here’s a potentially pivotal nomination–put up or shut up. (And liberals who are “weary” of defending Roe may want to pay attention to the way Alito and so may of his supporters studiously try to dodge the issue. What does this tell you?)

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