Scalito's Way

Bush has pulled the trigger, nominating an open reactionary to the Supreme Court and endangering everything about America we hold dear. Don't believe me? Read this (If all you want is a puff piece about what a nice, reasonable man Alito is, you can always read the NYT).

Before this war gets started, we need to be aware of the underlying strategic situation. The Bush camp has been reeling for months. This is an obvious ploy to change the subject away from indictments and to consolidate the conservative base. It is Rovism at its crudest.

It will also probably work. The press simply isn't capable of changing a narrative they've allowed to propagate: that the only thing that matters is a nominee's qualifications, that conservatives are restrained and liberals activists, that judges deserve an "up or down vote", and that a filibuster is unfair. A lot of people are claiming that the right can't make these arguments in the wake of the Harriet Miers debacle. My response is - why not? When has the outrageousness of an action every prevented Republicans from performing it?

The fact is that we are most likely going to lose this battle. The most likely scenario is that the moderates will fall behind the hard right (again) and give Alito enough votes for a majority. Democrats will be forced to filibuster or sacrifice their remaining credibility with the feminist movement. The gang of fourteen will splinter, and the "nuclear option" will be invoked, killing the filibuster. Democrats will invoke their own nuclear option and attempt to shut down the Senate, which they will manage to do for a few weeks before the pressure becomes too great and a few Liebermans cave. They will be hailed as "moderates" (rather than "appeasers" or "traitors") and will invoke some sort of fig leaf compromise. Alito will be put on the bench at the last obstacle to executive tyranny, religious totalitarianism, and minority rights will be removed from our Constitution. Checkmate.

But do not lose heart. I want to tell you a little story about a great general who won a very bloody battle. When congratulated by one of his lieutenants for his victory, the general responded "More such victories and I am ruined!" That general's name of course was Pyrrhus, giving name to the Pyrrhic Victory.

The lesson is that there are defeats and defeats. Some failures are abject, and one gains nothing from them. But there are other setbacks in which one extracts such a price from one's opponent that it renders his triumph meaningless. The Democrats have an opportunity to choose their own ground in this battle. We can make this debate about more than just abortion, or the rules of the Senate. If we are clever, and disciplined, we can make the story of this nomination about the radical fringe of a quasi-fascist political movement attempting to pack the Courts. We can make it about preserving American freedoms that our opponents are determined to roll back. We can, in short, use this battle to demonstrate to the rest of the country exactly what these people are.