The White House has tried to create an air of inevitability around this nomination. But there is no reason to believe that Judge Alito is any more popular than the president who nominated him. Outside a small but vocal group of hard-core conservatives, America has greeted the nomination with a shrug - and counted on its senators to make the right decision.The point of this paragraph is to refute the strongest argument for voting for Alito: The Constitution gives the President the appointment power. That means something. Elections mean something. If you believe constitutional law at the Supreme Court level is somewhat, mostly, or completely political, it means even more, because someone must choose from among all those qualified jurists. Why would it not be the President?
Here, the NYT's assertion is that the President isn't that popular. Though he was re-elected a little over a year ago, support for him is rather low. (Too bad it's not lower, or this would be a better argument!) Under this view, a President's leeway to pick the Justice he wants waxes and wanes with the polls. He ought to moderate his selection according to the level of political support he currently enjoys, or perhaps according to the level of political support on the issues likely to come before the Supreme Court in the coming years. His failure to accurately channel political preference ought to activate Senators to push back more forcefully than they would have if the President had not himself made a strong move. That's the theory, it seems.
That's not a bad theory. But "America has greeted the nomination with a shrug." The hearings were designed to reveal the supposedly extreme views of the nominee. It was at this point that the people should have begun expressing outrage and demanding that the Senators stop the nominee. The Democrats on the Judiciary Committee did their best to stir up outrage. But where is it? They tried as hard as they could to alarm people about the issues that tend to create the most political heat. Abortion! Silence. The NYT is left saying only that the President isn't popular enough and that the people must be counting on Senators to figure things out for them and to do what they would have wanted if they'd bothered to attend to their own interests.
The Times concludes by reminding the Senators of their interests:
The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O'Connor's seat be filled with someone who shared her cautious, centrist approach to the law.Why? What exactly is the political dynamic for Democrats? If the shrugging Americans are suddenly awoken by a Court making extreme and unpopular decisions, will they blame the Democrats for not stopping him? If people don't like it, they should blame the President, who chose him. Then, the Supreme Court will become an important issue in the next presidential election, as it was not in 2004. The Democrats will be in a good position to argue that a Democratic President is needed to moderate the Court.
And what if the new Court does not make the extreme and unpopular decisions that the NYT predicts? What if the transition away from Justice O'Connor's style of decisionmaking goes well, and, under the leadership of Chief Justice Roberts, the Supreme Court wins new admirers and inspires greater confidence? What if Samuel Alito performs well? How will a Democratic Senator who railed against him look in a presidential debate saying you need to trust me to pick the next round of nominees?
Where are the real political opportunities and risks in the Alito vote?