[Supreme Court]

On Alito.

I have heretofore avoided the question of Alito, for our discussion of his nomination is like the buzz of bees to the proceedings. Nevertheless. For liberals, two questions: 1) is his candidacy filibuster-worthy? and 2) is he moderate enough to warrant a yes vote, given that you can only filibuster one of Bush's nominations?

As to the first question--he should obviously be filibustered. Fortunately, it's not a close call. The good folks at PFAW have documented why he should never join the Supremes. I'll select three deal-breakers, though there are more:

• Racism. He would have "eviscerated" legal protections in the Civil Rights Act, would have made it more difficult for people to bring a case alleging discrimination to the court (he was the 1 in a 10-1 decision), and he ruled that a conviction against a black defendant was legal, despite the prosecution's stacking of the jury.

• Ultraconservative on states' rights issues. From PFAW: "In another case, Chittister v. Department of Community and Economic Development, Alito held that Congress had no authority to require state employers to pay damages for violating employees' rights to sick leave under the Family and Medical Leave Act [ii], a ruling that was effectively repudiated by the Supreme Court in a later case in which ultra-conservative Chief Justice Rehnquist wrote the Court's decision [iii]."

• Searches and seizures. From Jonathan Turley's USA Today editorial: "For example, in Doe v. Groody, Alito wrote a dissenting opinion arguing that police officers could strip-search a mother and her 10-year-old daughter, despite the fact that neither was named in the search warrant nor suspected of crimes. The majority opinion was authored by fellow Republican and conservative Judge Michael Chertoff (now serving as secretary of Homeland Security). Chertoff criticized Alito's views as threatening to "transform the judicial officer into little more than the cliché 'rubber stamp.' "

The second question is philosophical, for obviously, there's nothing from stopping multiple filibusters. Dems frequently (and accurately) call Bush nominees "dangerously out of the mainstream." If they believe this, they should stand up for the Republic and exercise the little power they have remaining. If they actually believe that (and behind closed doors, I'm guessing most would admit they do), a better question is "Why wouldn't you try to stop it with every tactic granted to you by the Constitution?" Isn't that your job?

Of course, the GOP might try to permanently end filibusters. Philosophically this changes nothing, but let's ponder for a moment what the GOP would do if Dems did filibuster Alito. Their credibility now is nil. They teeter on the edge of defeat, and the hubris that led them to think they would always control the Senate must surely be gone. So they would threaten to end filibusters, ultimately back down, and wait for the next nomination.

So then, Bush: would he send someone just as conservative? No way in hell. His second term is a perpetual train wreck, and the only thing he's got going for him is the Supreme Court. He can't risk a high-profile pissing match with the Dems. He has to do what he always does--accept reality and declare victory. So he would nominate a moderate, perhaps even one brokered (as was done, properly, in the past--as recently as with Clinton) by Pat Leahy, the ranking Dem.

All of this depends on Democratic spine and principle, of course, on which I'd stake very little. My prediction: lots of bluster and then a 62-37 vote.