Like Neil, I think Matt is being far too charitable to Dan Gerstein’s silly attempt to defend Lieberman’s pro-Alito vote. Or, to be more precise, I think Matt’s half-defense is an “other than that, Mrs. Lincoln, how was the play” argument–given that all of Gerstein’s non-trivial arguments boil down to a defense of the Sacred Gang of 14, I don’t know what there could be left to agree with:
- It is indeed literally wrong to say that “Joe Lieberman put Sam Alito on the Supreme Court,” but since nobody actually argues this it’s also irrelevant. By the same standard, none of Lieberman pro-reproductive freedom votes should be counted in his favor unless they passed by one vote. Votes do not have to be decisive to be part of the record one uses to evaluate a legislator, and the fact remains that on the most important vote on reproductive freedom since 1987, Lieberman voted the wrong way.
- So, the defense comes down to the value of the Gang of 14 agreement to Democrats, and this value is “zero.” Preserving the filibuster means nothing if the judges who are acceptable under the standard include people like Alito and Priscilla Owen. Who exactly is Lieberman waiting for? Roy Moore? A tanned and rested Robert Bork (defeated by the Senate although his voting record would be essentially indistinguishable from Alito’s)? The mummified corpse of James McReynolds? Preserving an entirely meaningless procedural agreement ahead of substantive outcomes is precisely the kind of inside-Beltway wankery that has Lieberman in trouble, and was also in evidence in his appallingly two-faced vote on the bankruptcy bill.
- On a historical note, with respect to the idea that ideology had nothing to do with conservative Senators filibustering quintessential Warren Court liberal Abe Fortas–if you believe that, I have a valuable collection of Harold Carswell’s Supreme Court opinions to sell you. And even if it were true, why on earth should the most important factor in evaluating a Supreme Court justice be off the table? Particularly when the politicians selling Alito were notably lacking in candor about his constitutional philosophy?
- And, of course, had an Alito filibuster caused the Republicans to detonate the nuclear option, this would be a feature, not a bug. As one of Neil’s commenters notes, “How would the nuclear option have been worse than what actually happened? What’s the point of having the theoretical option of a filibuster if you can’t use it? Furthermore, if the Republicans actually did use the nuclear option, not only would the immediate situation have been no worse than what actually happened, but a long-term precedent might have worked in our favor. When we get a majority back and the Republicans try to filibuster, say, universal health care, we then have the ability to steamroll them on that.” Exactly right.
So, in other words, his pro-Alito vote should absolutely count against his record on reproductive rights and civil liberties, just like his disgraceful behavior during the Schiavo affair. The critique is 100% fair. [Schiavo link via Jane.]