Dick Morris On Why The Dems Can't Stop Alito

Hard to disagree with, really:

To the likes of Sens. Edward Kennedy (D-Mass.), Charles Schumer (D-N.Y.), Hillary Clinton (D-N.Y.) et al., the Supreme Court is a kind of super-Congress — nine special Senate seats — and the criterion for confirmation is agreement with the nominee on the key issues likely to come before the court. But to the American voters, the Supreme Court is above politics and ideology and confirmation should be awarded based on personal attributes such as integrity, intelligence, judgment, compassion, wisdom, maturity, fairness and temperament.

We usually call that a "superlegislature," and that's the most elemental difference between how conservatives and liberals view the Court. Conservatives view the court's mission as interpreting and applying law and clear textual mandates found in the Constitution (the real Constitution, not the "penumbras and emanations" version). Liberals view it as simply a third, superior -- supreme, really -- house of Congress, one that actually ultimately controls all government. Liberals see the Court as the ultimate arbiter of all political questions, not just constitutional ones.

Simple question: If there's a bad law that's not actually unconstitutional, should the Supreme Court strike it down? Liberals don't think too long before saying "Yes." Conservatives almost as quickly say "No." Democracy allows for -- and must allow for -- the people to occasionally, and stupidly, pass bad laws. If they're not allowed to pass bad laws -- if their democratic decisions, even the dumb ones, are subject to review by an unelected superlegislature -- then that's not really a democracy, is it? It's more like a magistrarchy which occasionally deigns to take suggestions from the voting public.

Realizing this difference in perspective between the Democratic base and the public at large, President Bush has done very well with both the John Roberts and the Alito appointments. When his people forgot about the dichotomy — and nominated Harriet Miers who was seen as a poorly qualified if conservative candidate — they got their heads handed to them.

I think that's a pretty good point. If Dick Morris is right, and the public basically agrees that the Court should be staffed with the best and the brightest, regardless of judicial theory, then Harriet Miers, I'm sorry to say, fails the public's test. If qualifications and not ideology are most important -- as Republicans have argued in trying to get Roberts and now Alito confirmed -- what the hell were we doing nominating an ideologically sound (maybe...) but not especially qualified woman to the court?

He also thinks Roe is not all that crucial in the public's mind:

...voters are not deluded; they simply do not see Roe v. Wade in quite the apocalyptic terms that both the left and the right do. To the vast middle of the American political spectrum, it is more important that a Supreme Court nominee be a good person with sterling credentials than be predictably for or against Roe v. Wade.

I think he's right here too. Although there are committed single-issue voters on both sides, I think most people are conflicted about abortion, and neither want it banned nor immune to any restrictions whatsoever. Further, they're not even strongly passionate about that middle-of-the-road take.

I do think this country is basically pro-choice. Just not passionately so. And I think the public realizes the same judges likely to protect Roe v. Wade against even minor limitations are the same judges likely to invent new rights for criminals. They're softly in favor of the former, and strongly against the latter. Leaving the Abortion Card as a rather weak one.

posted by Ace at 02:43 PM

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