Judge Alito, a new Souter?

How's that for a provocative title?

First, I am not too terribly familiar with the newest victim in the nomination process. I have no idea how he scores with the business community so I have no idea if this is a serious nomination or a distraction. If he was on the Chamber of Commerce's short list, then Bush will fight for him and he will be confirmed. If he was not, this is likely an expendible nomination designed to shore up the President's base - although this may be the lack act of a desparate President (since if the nuclear option is invoked the rest of the legislative session is done and the next one too). Then the nomination to look out for is the next one.

Second, I have no knowledge that he is secretly pro-choice. I have only statistics to use as prediction. Since Roe was decided, 66% of Republican nominees have affirmed Roe (Stevens, Kennedy, Souter and O'Connor) while Thomas and Scalia have sought to overturn it. Both Democrats supported Roe. The late Chief was already on the Court when Roe was decided and was against it. Given those odds, it is likely that either Alito or Roberts will vote to affirm Roe when it comes up again - if not both. Of course, even if they are both anti-Roe, that is still only four votes. I would expect Roberts to either affirm Roe or come up with some compromise which is unanimous.

Of course, a true originalist would have to look long and hard to find protection for the unborn at the founding of the constitution or even the ratification of the Fourteenth Amendment. Anti-abortion laws were a more recent invention and protection of the unborn cannot be found anywhere in the text, which if read explictly would seem to prevent it since to be considered a citizen under the constitution you must be born or naturalized.

Ms. Miers withdraws and the Right is still punk'd

The Christian Right thinks it has scored a victory in the withdrawl of Miss Miers nomination for the Court. It is wrong.

The fact that they won this round merely proves that they got punk'd by the Frat Boy in Chief and that the Republicans know that they have no where else to go.

Some bet that Bush will pick a conservative. If he picks a movement conservative he will tick of the donor class and trigger the kind of fillibuster/nuclear option that will tie up the Senate for a year and lead to massive Republican defeats in November. It will also lead to the real donors writing checks to the other side.

Karl Rove may be a crook, but he ain't stupid.

My bet is that someone from the Chamber of Commerce list will be nominated and confirmed. Either that or Alberto Gonzalez will be the nominee.

If a conservative is nominated there will be a fight and the name will eventually be withdrawn.

Justice O'Connor could be on the bench for a while.

Miss Miers and the Repunk'dlican Right

Many of us on the left are watching the White House squirm over the Miers nomination with particular glee. It seems that former corporate lawyer Miers is the darling of the business community, who has made noice in recent months that they will not be ignored in the debate over who Mr. Bush will place on the Supreme Court. This is causing some in the leadership in the Christian Right to fall all over themselves assuring their faithful that she is a faithful, anti-abortion, anti-gay evangelical. What has the rank and file so steamed is that they had identified several conservative "movement" judges who would actively pursue a social agenda if put on the High Court, and Harriett was not on the list.

Could it be that they have been punk'd by frat boy George? Could be.

Or could not be. It just may be that she is a stealth Thomas, rather than a stealth Sueter. As you may remember, Clarence Thomas came to the job painfully short on credentials and like Miss Miers was nominated for demographic reasons as much as, or more than, his resume. His career on the court seems to have borne this out, as it has hardly been distinguished to date. Like Thomas, however, Miers may be a corporate lawyer with a closet social agenda. It only took Justice Thomas six months to go back on what he said about a right to privacy. There is a similar danger here, although readers may note that in this space I opined that Chief Justice Roberts is likely a sure vote to uphold Roe, leaving the abortion vote at 6-3 in favor of upholding Roe and Casey as settled law. Given the track record on GOP nominees, it is likely that one of these two will uphold Roe while one will not.

So why the hubbub, bub? Borrowing from the bard, me think the right wing doth protest too much. It could very well be that Mr. Rove is orchestrating the whole right wing sob story so as to throw the Senate Democrats off the trail of Miss Miers movement conservatism. In this case, it is the Democrats and the American people who are being punk'd.

Is Rove that devious? Yes. Of course, things might be just as they seem and the White House is showing its true colors as a bastion of country club Republicanism. In which case, the Christian Right needs to ask itself, "where are we to go?" The sad fact is that, if they are not in on what would be the biggest political con of the last 200 years, the country club Republicans believe that they have no where to go. In essence, they are to the GOP what the Black vote is to the Democrats - trapped.

There is hope for them, however, if they are willing to learn. The leadership of the pro-life movement holds out the repeal of Roe as the Holy Grail of Republican politics precisely because it will never happen. Recent abortion statistics show that the best ways to stop abortion are economic, i.e., higher minimum wages and a more progressive tax policy. Meeting the economic progressives in the Christian Left somewhere in the middle might lead to the formation of a new movement, the Christian Libertarian Party. I will offer a shoulder to cry on for anyone who is interested in stepping out of the darkness of Karl Rove's mind. Simply follow the links to my web page and we can get started.