Liberal groups are unhappy with the quality of questions asked of Samuel Alito by Democratic senators. Some senators have been windbags, of course. But the real complaint seems to be senators’ failure to ask often very obvious follow-up questions. I would point out that it would be so simple for a senator to simply say to Alito that, since he will say that he does believe a few things or that some things are settled points (e.g., the one man, one vote rule), his refusal to say whether the commander-in-chief power uniformly or generally cannot override a Congressional statute, or whether this power allows the President to unilaterally decide to start a war against Iran or Syria or North Korea, will be taken to mean that he might well approve the legality of such overriding or such a war.
This is an extraordinarily dangerous situation, especially since Alito indicated, by bringing up the political question and justiciability doctrines, that a court should not touch the war or perhaps even the wiretapping questions with a fork.
Likewise, a senator could say to Alito that his refusal to say that Roe v. Wade is settled law will be taken to mean that he might well vote to overrule it. These, of course, are not follow-up questions. But they are the kind of brief follow-up statements which any intelligent interlocutor should use when a witness refuses to answer a question one way or the other. And these statements help people to see what is at stake and what might happen if someone is given an office.
This is all so simple that it is astonishing that no senator has done it as far as I know. And these simple kinds of statements would have been so much more effective than trying to paint Alito as a liar and a bigot. Yes, I know and agree that his claim to have known and to remember nothing about CAP is not believable. Yes, I know it is hard to believe he could not remember the Vanguard business 12 years later. Yes, I know that his decisions have too often disadvantaged the poor, the black, the downtrodden. But nobody is buying that he is a bigot.
In regard to bigotry he reflects what might be called the intellectual hard hat ideas typical during the 1960s and 1970s (and to some extent even today) in the kind of community from which he sprung. And that is one reason he was willing to say that Princeton students against the Viet Nam war were acting irresponsibly (a position with which I thoroughly disagree) in contrast with people from his own community twelve miles away. But is he a bigot today? It is self-defeating for the Democrats to try to show that he is.
His problem is not bigotry. It is, if anything, something nobody seems to have discussed, although it was pointed out awhile ago by people who knew him at Yale Law School (and in practice, too, I think). It is that he sees the law as a technical intellectual game, not as a matter in which the humanity of a situation must always be borne in mind. I understand the technical intellectual fascination of the law: I and many of my friends love this aspect of it. But one has to be aware that the interests of humanity are at stake. We are not dealing merely with a fascinating intellectual game. But it is his adherence to the fascinating intellectual aspect of the law, and his belief in ideas on only one side of that intellectual game, which, in my judgment, are likely responsible for what apparently is the extensive record of decisions against the less fortunate and the poor.
It is hard to think right off the bat of a more striking example of how to him law is merely an intellectual game than the fact that, when asked whether an innocent man has a constitutional right not to be executed, he almost exclusively talks about whether this procedure has been followed or that procedure, etc., etc. Though he did say at one point that the constitutional system protects innocent people, or something to that effect, his overwhelming stress is on procedures, and he seems unable to say flat out, or usually even obliquely, that, as the dictates of simple humanity would require, an innocent man has a constitutional right not to be executed.
I should add the related point that, just as he seems to think of law as some form of fascinating intellectual game rather than a field in which humanity is all important, so too one would think, if one only listened to what Alito said in these hearings, that he is a man who has no opinion on anything unless it has previously been decided beyond peradventure by courts, especially the Supreme Court.
There are, in fact, lots of lawyers and law students who are so tied up with law that their first and often only answer to any problem is that the Supreme Court says this or that about the problem, without any apparent sense that there are all kinds of ways of looking at a problem wholly aside from the (too often ignorant) rulings of the Supreme Court or lower courts
Owing to the Democrats’ general ineptitude in questioning, however, it is widely thought to be very difficult or impossible to defeat Alito, by filibuster or otherwise, at least as matters now stand. So let me make a suggestion that might help people try to change the current calculus. I was on a television show the other night on which the Philadelphia host asked the following question: Isn’t it true that there is nobody whom George Bush could nominate whom the Democrats would approve of?
The three persons with the host in Philadelphia all agreed that this is so. Sitting alone in a Boston studio my own answer was this: There probably is nobody Bush could nominate whom the Democrats would approve of. But there are people whom they would find far less objectionable. To this, the response from Philadelphia was, in effect, “Oh, yeah, like who?” My answer was: Well, for one, how about Arlen Specter? This seemed to surprise the people in Philadelphia, maybe even into the defacto equivalent of having no response.
When explaining why he had tried to get Eugene McCarthy to run for President in an effort to defeat Johnson and stop the Viet Nam debacle, Allard Loewenstein said: “You can’t beat somebody with nobody.” So in the circumstances now existing, if those who are against Alito are serious about still trying to stop his nomination — and they damn well should still be serious because, in my own view, by bringing up the political question and justiciability doctrines he has virtually announced implicitly that he would not rule against a President who unilaterally decided to take us to war against Iran, Syria, North Viet Nam, or whomever — then the Democrats should say that they would willingly accept Arlen Specter as a nominee and would confirm him to the Supreme Court almost instantly.
My respect for Specter has not been unlimited, something which has been true case since I watched his disgraceful effort to savage Anita Hill at the time of the Thomas hearings. But the current hearings have shown that he does understand the right to privacy and the need for the powers of Congress to remain with Congress rather than being usurped by the traitors to the Constitution who comprise the Bush, Cheney, Addington, Yoo, Rumsfeld, Wolfowitz, Feith, etc., etc. crowd. Also, Specter’s handling of the Alito hearings has been very courteous and competent.
To make clear right off the bat that the Democrats would willingly support Specter would show reasonable and moderate people that it is Bush who has caused the problem by nominating a candidate who is divisive because of right-wing views he has expressed. It would take away the argument, currently persuasive to many, that the Democrats, especially ones who rightly or wrongly have really ticked off the public by their conduct in these hearings, will not support any individual nominated by Bush, and would show that, far from trying to cripple any and all nominees put forward by Bush, they will happily vote for a moderate, reasonable Republican like Specter, who by rights ought to receive a favorable vote of 100 to zip in the Senate. (Of course, he probably wouldn’t in fact receive a unanimous vote, because the whacked out right-wingers would go berserk and would probably force some of his colleagues to vote against him.)
It seems pretty clear that, if they are still serious about trying to defeat a candidate who has made it seem very likely that he will vote in favor of the democracy-destroying constitutional coup d’etat being attempted by Bush, Cheney, Yoo and the rest of those traitors to the American Constitution, then the Democrats had better try Allard Loewenstein’s principle that you can’t beat somebody with nobody. The Democrats had better make clear that there are lots of moderate Republicans for whom they would willingly and gladly vote, and that Specter is an immediately available example of this willingness.
LAWRENCE R. VELVEL is the Dean of Massachusetts School of Law. He can be reached at firstname.lastname@example.org.
*This essay represents the personal views of LAWRENCE R. VELVEL.