As with the hurricane that zeroed in on New Orleans
days before coming ashore, there should have been no surprise about
Judge Alito. He was exactly what the Republican base had long wanted in
a Supreme Court nominee, a
hard-line judicial ideologue with a pleasant demeanor and a soft-spoken
Indeed, Alito has been such an unapologetic supporter of
the Right’s beloved Imperial Presidency that Alito’s one noteworthy
assurance – that George W. Bush was not “above the law” – was
essentially meaningless because in Alito’s view Bush is the law.
Yet the Democrats were incapable of making an issue
out of Alito’s embrace of the
executive,” a concept so radical that it effectively eliminates the
checks and balances that the Founding Fathers devised to protect against
an out-of-control President.
Bush even gave the Democrats a news hook to make
the peculiar phrase “unitary executive” a household word. Bush cited his
“unitary” powers just days earlier in signaling that he
would use his commander-in-chief authority to override the provisions of
Sen. John McCain’s anti-torture amendment passed in December 2005.
Though the McCain amendment had been big news – and
Bush’s announcement of his personal loophole on torture had been
reported in the press – the Democrats still failed to force this
troubling concept of an all-powerful President into the mainstream
“Unitary executive” may have been the buzz of the
blogs, but it was barely mentioned on the evening news. The notion that
Bush and Alito believe the President has the power to abrogate the Bill
of Rights, authorize torture and seize control of independent regulatory agencies got much
less attention than a few tears shed by Alito’s wife.
But very little that happened during Alito’s three days
of testimony should have come as a surprise to the Democrats.
The senators knew Alito was going to dodge direct
answers to questions about Roe v. Wade and other hot-button issues. They
knew the Right would rally its extensive media and grassroots
operations, even lining up people to cheer Alito when he arrived on Capitol
Hill (much as they did for Oliver North during the Iran-Contra hearings
almost two decades ago).
The Democrats must have realized that the
mainstream media would focus on the most trivial aspects of the hearings
– as well as on the windiness of the senators’ long-prefaced questions.
The only hope to change those dynamics would have been to present a strong alternative narrative.
That alternative narrative could have been how the
Right has spent three decades steadily building its infrastructure and
clout to consolidate ideological control around an Imperial Presidency
held tightly in Republican hands and endorsed by a restructured Supreme
Court. [For details, see Robert Parry’s
Secrecy & Privilege.]
The Democrats could have built the drama by
spotlighting the stakes involved in Alito’s nomination, that the
final check and balance in the U.S. political system – the courts –
would be locked down by ideologues who have long boasted of their
determination to gain one-party dominance in Washington.
By undergoing rhetorical liposuction, the
Democrats also might have trimmed down their flabby speechifying and instead
posed pointed question after pointed question to Alito, eventually
making his refusal to answer questions the central issue of the
hearings, not their own bloviating.
Does the President have the right to override the
McCain amendment and order the torture of detainees? What point is there
in Congress passing laws if Bush as the “unitary executive” can simply
declare them meaningless? What would Alito do if Bush announced that he
would begin ignoring Supreme Court rulings?
Since the “unitary” theory holds that independent
regulatory agencies must cease to exist, should the President have total
control over a revamped Securities and Exchange Commission? If one of
his contributors is caught up in an accounting scandal, should the
President have the power to order the SEC to look the other way?
If a media outlet criticizes the President, should
he have the power to order the Federal Communications Commission to
cancel the station's broadcast license? Would it be okay for Bush to
license to a political ally or a campaign contributor?
Since you, Judge Alito, have long promoted the
theory of the “unitary executive,” where are the boundaries of the
President’s powers? For the duration of the War on Terror, are there any
meaningful limits on the President’s right to do whatever he deems
necessary? Judge Alito, how do you differentiate between a system run by
a “unitary executive” and a dictatorship?
Clearly, Alito would not have answered these
questions. He would fallen back on his ritual response of declining to
comment about issues that might eventually come before the Supreme
But many Americans would have been shocked by
Alito’s refusal to stand decisively on the side of a traditional
democratic Republic and against an autocratic regime. It also might have
dawned on millions of Americans what’s at stake in this debate.
Another advantage would have been that some
Republicans might have been put on the spot.
Instead of letting Sen. Lindsey Graham, R-S.C., set
the Democrats up for the melodramatic moment of Mrs. Alito leaving the hearing room in tears, the Democrats could have demanded to know
why Graham, who supposedly objects to torturing U.S. detainees, was
coddling a right-wing jurist who helped craft the legal arguments for
the President’s right to torture.
Instead, the Democrats made their own ineptitude
the issue, both by preening before the cameras and pandering to
their interest groups. With few exceptions, when the Democratic senators weren’t looking silly, they were
sounding craven. They failed to elevate the importance of the hearing
beyond whether Alito was an active member of some creepy Princeton
The Left’s Media Mistake
In a larger sense, however, the hapless Judiciary Committee
Democrats reflect some of the damaging strategies that liberals and
progressives have followed for 30 years.
Rather than building a media infrastructure to
match up with the imposing right-wing message machine, the American Left
has concentrated on supporting interest groups in Washington and doing
“grassroots organizing” supposedly across the country.
The harsh reality, however, is that liberal
interest groups in Washington
often are more concerned about churning their supporters
for money than getting results. The “grassroots organizing” –
without any significant media to get out a consistent message – has
become patchy and stunted, a political brownout.
The few bright media spots for the Democrats and
the liberals have come almost in defiance of the major funders on the
Cash-strapped Internet blogs have had the courage
to take on the Bush administration and the major media but have limited
influence with the broad American public; progressive talk radio barely got
started because it was shunned by wealthy liberal funders; and
Comedy Central programming, such as “The Daily Show with Jon Stewart,”
popped up as a cultural, not a political, phenomenon. [See
Left's Media Miscalculation."]
The lack of any significant media on the Left – at
least that compares with the Right’s media juggernaut – has left
Democratic politicians feeling isolated, trying to triangulate the best
deal they can for themselves. Many leading Democrats seem to suffer a
kind of Stockholm Syndrome, in which they become passive or even helpful
in the face of their tormentors
At a time when many rank-and-file Americans are
alarmed that the Constitution and the continued existence of a
democratic Republic are in jeopardy, they see congressional Democrats
more concerned about avoiding unpleasant confrontation than leading the
fight against encroaching authoritarianism.
Some Democrats, like Sen. Joe Biden of Delaware,
seem to think their chief purpose in Washington is to be on as many
network talk shows as possible, a goal that requires them not to be seen
as too extreme or strident in their criticism of Bush or his
All of these factors came together in the three
days of hearings on Alito. The Democrats looked disorganized, clueless,
Though they knew this political disaster was
bearing down on them for months if not years, they looked as surprised
and befuddled by the predictable devastation as Federal Emergency
Management Agency director Michael Brown did when Hurricane Katrina
flooded New Orleans.
Perhaps someone needs to go up to Capitol Hill with
the message, “Heck of a job, minority members of the Senate Judiciary