The Alito Hearings: Spin-Point Immunization

I thought about coming up with my own questions for the Alito hearings, but to be frank the hearings are unlikely to produce any valuable information, and so we should judge Alito on his (exceptionally conservative) record. (Conservatives are right about one thing: calling him “Scalito” is unfair. To Scalia.) As we begin the hearings, a few things to note as you watch his apologists try to pretend that he’s not the staunch Federalist Society reactionary everyone thought he was before he was nominated to the Supreme Court:

• Claims that he will giver “serious weight” to precedents or whatever are evidently meaningless, since all of the interest is derived from what the exceptions will be.
• More importantly, in most cases whether he will vote to overturn precedents or simply gut them from the inside makes very little difference. With respect to abortion, an incremental dismantling would actually be worse. The outcome–abortion-on-demand for affluent women, highly restricted access and largely illegal abortions for poor women–would be the same, and the Republicans wouldn’t pay the political price of overturning the very popular Roe. And there’s simply no serious question that, at the minimum, Alito would uphold virtually any regulation that stops short of a ban, and would also make it very difficult to challenge these regulatory obstacle courses in the courts.
• Evaluating justices is a question of probabilities, not certainties. Keep in mind that information–such as the fact that he was so reactionary as to be staunchly opposed to Baker v. Carr in 1985–is important for reasons that go beyond the narrow issue at stake. The Supreme Court is not going to overrule Baker, so it’s true that what he thinks about the case today isn’t terribly important. But what it indicates is that he’s generally hostile to civil rights and voting rights. And on civil rights, this is reflected in his remarkable hostility to claims brought under anti-discrimination laws, up to and including his attempt to deny anti-discrimination claims by using reasoning so radical and illogical it was rejected 10-1 by a 3CA en banc and 9-0 by the Supreme Court. This is parallel to the Republican abortion strategy; don’t overturn civil rights laws, just make it extremely difficult to actually enforce them.
• Finally, you will note that by far the most popular line of defense will be the Alito kabuki, conservatives who claim that they support Alito despite having no idea if he will agree with them on the most important legal issues. (Arlen Specter has already started by comparing David Souter–who had no record whatsoever with respect to abortion–to Alito–who is on the record as saying that Roe should be overturned.) What’s important about this line of defense is what it says about the political context. The fact that conservatives are not openly touting Alito’s conservative jurisprudence but rather trying to claim that his record doesn’t mean what it obviously means tells you that conservatives themselves don’t think that overturning Roe and many of the other long-held goals of conservatives are supported by the public. Democrats should not be running scared, and there is no reason to believe–pace Matt–that there is any kind of significant political downside if they strongly oppose Alito, which they clearly should on the merits.