January 9, 2006

The Democrats are a party in urgent need of a good fight. And the Alito nomination presents the perfect opportunity for Democrats to demonstrate that they are willing to wage a real battle for the things they believe in. Two core Democratic principles, at least, are at stake in these hearings, and are clearly threatened by the Alito nomination:

(1) whether we live in a country where the President has the right to declare himself to be above the law and can freely violate whatever laws he wants; and, (2) whether the privacy rights which are the bedrock of individual liberty in this country will be decimated by the Supreme Court, thereby returning us to the days where women were prohibited by the state from having abortions and where the Federal Government is able to intervene in our lives and restrict our liberties in the most personal and private spheres, from our most intimate relationships to the way we die.

If Democrats are unwilling to fight for these principles, what are they willing to fight for? And if Democrats crawl away from this battle, meekly convincing themselves before even engaging it that they are destined to lose and therefore shouldn’t even bother to try, how can Democrats possibly object when they are perceived as being weak, irresolute, and afraid of taking a stand for their beliefs?

All circumstances have come together to make this the perfect opportunity to fight. The President is weak and unpopular. His party is engulfed by scandal. The nominee is stiff, unlikeable, and even vaguely creepy; he looks and smells liberty-infringing. And the President just got caught breaking the law on purpose and then claimed in the most Nixonesqe manner possible that he has the right to violate the law.

And those are exactly the issues at stake in this hearing. Democrats should be frothing at the mouth to engage this fight. It couldn’t have been scripted better. There are great benefits to gained from this fight even if Alito ends up being confirmed. There is certainly more to be gained by a principled fight than there is to be gained by meekly and impotently accepting defeat without a fight, and thereby looking yet again like the nice, good losers.

Most Americans pay virtually no attention to Washington except when the big events occur. We should want Americans to pay attention to what this Administration is doing right now and should therefore crave a big event in order to capture their attention. If there is a real war over Alito -- rather than some pompous Senatorial ceremony where his confirmation is pre-ordained -- then Americans will pay attention.

Such a fight will give Democrats the opportunity to make clear that this President has been breaking the law because he literally believes -- and his Administration has said -- that he has the power to do so. And he is now trying to pack the judiciary with nominees who have only one thing in common: they have a history of great deference to presidential power because, like George Bush, they are believers in an unchecked Executive.

What is at stake with this nomination is whether we are going to have a country that endorses and allows George Bush’s theory that the permanent war we are fighting gives him the right to violate whatever laws he wants to violate. All indications are that Alito is at the very extreme fringe when it comes to deference to Presidential authority and power -- exactly what is most dangerous for the country right now. A country where the President can break the law and claims the power to do so is an extreme and radical situation -- at least for the United States -- but this is what Sam Alito represents and it is why he was chosen by George Bush for a lifetime appointment to the Supreme Court.

And yet many Democrats are declaring defeat before a stand is even taken and then, based on the defeat they’ve imposed on themselves, urging that no fight be waged. Thus, we are told by the always-calculating, rarely-impassioned strategists to simply give in to the "fatalism" of defeat, and to accept the proposition that Democrats are not "well-positioned to fight," and therefore shouldn’t even try. Ken Mehlman wholeheartedly agrees.

The central flaw with this defeatist mindset, beyond the image of weakness and soullessness which it projects, is that it spawns self-fulfilling prophecies. We are told not to fight because we will lose. In reality, the reverse is true: we lose precisely because we do not fight. The Alito nomination is far too valuable an opportunity to squander it with this same mistake.

The NSA law-breaking scandal perfectly illustrates this sad dynamic. For instance, Kevin Drum yesterday worried greatly that the NSA scandal is "a legitimately tough issue for Democrats." But it shouldn’t be, and it really isn't. George Bush broke the law, has vowed to our faces that he will continue to do so, and made clear that all of this is based on the theory that he is above the law. On both principled and strategic grounds, there is no issue that could possibly be more compelling for Democrats to take a stand.

But most prominent Democrats haven’t taken a stand. They have been afraid to make this case to the public. In the same post where Kevin worried about what a tough sell this issue supposedly is, he actually strained himself so severely to avoid saying that George Bush broke the law that he actually pushed himself into language so tepid that it became literally inaccurate, requiring a correction by Mark Kleinman.

Kevin is not alone. Again and again, when Democrats have spoken on the issue of Bush’s law-breaking, they have done so with statements so apologetic, half-hearted and diluted that they are almost impossible to comprehend. Most prominent Democrats have literally been afraid for some reason even to tell the public that Bush broke the law, let alone make clear the dangers that this Administration poses as a result of its theories.

If Bush opponents themselves are afraid to make the case that George Bush broke the law and that his claim to unlimited law-breaking power is a profound danger to our republic, then of course the public will not sufficiently appreciate or understand the point. And that’s the sad and vicious cycle that plays out time and again. Certain Democrats convince themselves that the public doesn’t agree with them on a certain issue, and as a result, they decide that they can’t fight on that issue. But the reason the public doesn’t agree is precisely because Democrats are afraid to make the case.

It's way past time to break that cycle, and the Alito hearing is the ideal place to begin. A filibuster will bring intense public attention to this nomination and will allow Democrats to clearly articulate what is at stake in our country and to show Americans they are willing to fight. Both of those benefits are immeasurable and desperately needed for both Democrats and for the country, regardless of whether the filibuster is successful. And for those needing assurances in advance that they can win, these polls should provide more than sufficient comfort.

A defeat is not remotely a foregone conclusion here. It only becomes one if Democrats internalize that defeat is inevitable. But even a defeat with a serious and principled fight is vastly preferable, on every level, to a defeat accompanied by the stench of fear and acquiescence.

The Democrats need to use this opportunity to clearly articulate and revitalize the basic principles which motivate the party, and it’s hard to imagine a better opportunity for doing so than a full-scale devotion to preventing the lifetime ascension of Sam Alito to the swing seat on the U.S. Supreme Court.

--Glenn Greenwald

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