Life After Alito

A Course of Action After He Is Confirmed

In reality this was all settled last fall. When George W. won his second term he also won the chance to replace at least two Supreme Court justices. Most Americans will never realize the significance of these lifetime appointees; even less will ever realize what was at stake last fall. We were all still too concerned with who would make America safer and we all know how that played out. There were enough people who were scared of terrorists, gay marriage, and John Kerry to give Bush a second term.

Bush has already appointed John Roberts to replace William Rehnquist as Chief Justice, a move that was essentially an ideological wash. Rehnquist was one of the more conservative voices on the court and Roberts should follow in his footsteps. The nomination and eventual confirmation of Samuel Alito to replace Sandra Day O’Connor is the move that will dramatically change the makeup of the court. O’Connor was the swing vote in many contentious decisions, in particular cases that dealt with abortion legislation. This new court will undoubtedly rule in favor of state legislation that will restrict a woman’s access to an abortion. Justice Alito was the lone voice of dissent when a federal appellate court struck down a Pennsylvania law requiring a woman to have her husband’s consent before obtaining an abortion. His decision was based primarily on his belief that the individual states should have the right to make such restrictions. We should expect much of the same from this Roberts/Alito court.

But wait! you scream. You’re talking as if Alito has already been confirmed? Planned Parenthood, People For the American Way, and other such groups are all going to fight the Alito nomination tooth and nail. They will spend countless resources and hundreds of millions of dollars on this fight. They’ve been waiting for this fight ever since Bush was installed in 2000. And it will all be for nothing. Alito’s confirmation cannot be stopped.

As I said before, this was decided on November 2, 2004. Yes, political pressure did stop the Harriet Miers nomination, but that was pressure on the president from within his own party. The political realities of the day dictate that Alito will be confirmed. The most basic of these realities is that Republicans hold the Senate. Alito gets confirmed on any straight up-and-down vote. He is well-respected by the party and has the ideological street cred to make the party faithful happy. Bush would have to nominate Pat Robertson to have a nominee defeated by the moderate Republicans in the Senate.

So that leaves opponents of Alito only one option: a Democratic filibuster. Senate majority leader Bill Frist has already attempted to take away the minority party’s right to filibuster judicial appointments. This time he’ll pull it off, permanently altering the nature of the judicial branch.

Frist’s last attempt to do so was thwarted by the bipartisan Gang of 14, led by Senator John McCain. Seven Democrats and seven Republicans joined together in a pact to save the judicial filibuster. The Republicans agreed to vote against the “nuclear option” if the Democrats agreed not to use the filibuster unless it was an “extreme circumstance”. Alito will not be seen as such a circumstance by these centrist Republicans.

McCain is probably going to be running for the Republican nomination for president in 2008. It would be politically impossible for him to allow the Democrats to filibuster the Alito nomination and win the presidential nomination. Anti-abortion activists within the party would squash any of McCain’s aspirations for higher office. Abortion mobilizes the Republican base like no other issue. The Republican Party establishment has been promising religious conservatives a victory over abortion for years and this is its chance. The Democrats will filibuster out of obligation to their own activists. Frist will then take away the minority party’s right to filibuster judicial appointments. Alito will be confirmed and this country will have a new conservative Supreme Court.

This is what the Republican Party faithful have been waiting for: a court in their own image. Their court. Let’s face it, the court has been pretty progressive for the last 40 years. This is the dawn of a new conservative court and we progressives better get used to the idea. Fast. We need to learn how to fight this new fight. No longer will we be able to depend upon the Supreme Court to make the right choice. No longer will we be able to fall back on shaky rulings like Roe v. Wade. We are going to have to settle some of these disputes that have been simmering so long. We can do this by taking it to the states.

Knowing the ideology of this new court, one can assume that it will favor the rights of states when in disputes with the federal government. This was the basis of Alito defending the Pennsylvania “husband notification” law: It was the state’s right to pass its own legislation on the matter. The state was not trying to ban abortionwhich would obviously conflict with Roeit was just giving it its own local interpretation. That’s why I think it’s essential that we start fighting battles like abortion more intensely on the state level. Think of the hundreds of millions of dollars that will be wasted on futile television advertising to stop the Alito confirmation. Wouldn’t that money be better spent on getting pro-choice candidates elected into state legislatures? We’re not talking about big races here. One hundred million dollars could get 200 state representatives elected nationwide. I’m sure this would violate some state campaign-finance laws, but where there’s a will there’s a way.

More importantly, people like us need to donate our time to these types of races. Donating $50 to Move On with one click of your mouse is easy. If you really believe in these issues, go to a meetup, a local Democratic Party meeting, or a candidate’s office and ask “What can I do?”. Your time and effort are much more valuable. We’re not going to be able to throw Hail Mary passes at the Supreme Court and hope for the best. We’re going to have to grind these battles out door to door, county by county, and state by state. This will be a long hard fight, but when it is over our victory will be complete and satisfying.

So before you donate another dollar that’ll be thrown into the Alito furnace, you should associate yourself with present and pending abortion laws in your state. The Center for Reproductive Rights did a state-by-state study in September 2004 titled “What If Roe Fell?”. It ranks all 50 states as either high risk, middle risk, or low risk. The center considers 21 states as high risk, 9 as middle risk, and 20 as low risk. States considered high risk have pre-Roe abortion bans or no specific protection of abortion rights. The middle-risk states generally have conflicting language, mixtures of pre-Roe bans, and legislation protecting abortion rights. The low-risk states either have language protecting abortion rights or have never had a ban restricting abortion.

The entire report is 140 pages long, but you can find concise reviews of each state starting on page 19. An alphabetical, comprehensive state-by-state analysis begins on page 25. You should at least check out where your state stands on the list. It might surprise you.

I don’t think that this new conservative court will actually overturn Roe. Instead it will allow individual states to place increasing restrictions on a woman’s access to an abortion. Many state legislatures have pending “Teen Endangerment” laws or increased parental notification legislation in the works. This new court will keep abortion legal, but eventually you may have to have your picture in the newspaper to obtain one in some states.

American progressives must accept this new reality and learn how to fight this new fight. We must be agile and adjust. We will still win this fight but we are going to have to approach it from a different angle: taking it to the states and duking it out in state legislatures. We’re going to have to strengthen our grass-roots organizations and grow the number of Democratic governors. We going to have to win some big battles in those “high-risk” states and we are going to have to accept that some states will be lost.

This new conservative court should be receptive to states-rights issues. These issues have been part of the conservative cannon for decades. We’re going to learn to fight this fight using their language. We must accept that for the time being, the Supreme Court is theirs. We are just going to have to beat them using their own “house” rules. We can. We’ll always be faster then they are because we look forward.

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