The Alito schism

Howard Fineman • E-mail

WASHINGTON – Next January, at Super Bowl time, we’re going to witness a battle for the ages here. But it won’t be like a football game, because neither side will win.

For two Supreme Court nominations in a row – John Roberts and Harriet Miers – the country avoided a brutal debate over the role of the court on issues such as abortion, civil rights and race. At first glance, I thought the choice of Judge Samuel Alito, Jr. would make it three peaceable outcomes in a row. He was qualified (as Miers, who withdrew, was not) and modest (as Roberts, who was confirmed, seems to be).

I was wrong.

We’re looking at a Fight Club battle at the start of the year. The inflammatory content of Alito’s 20-year-old application to the Reagan Justice Department insures that.

Admittedly, Alito was in major suck-up mode in 1985 when he applied to Reagan’s attorney general, Ed Meese, for a job. But the lengths to which Alito went to express the purity of his New Right views is impressive – and explosive — in 2005, as Alito and his White House backers try to sell him as a blandly cautious incrementalist.

Fight'n words
The key line in the application, of course (and it’s already graven on the minds of activists): “the Constitution does not protect a right to abortion.” Alito was 35 when he wrote that; Roe v. Wade was 12.

Alito also boldly denounced other lines of cases crafted by the Warren Court, including landmark decisions on criminal procedure and voting rules.

The memo has changed the dynamics here, sharpening the partisan divide in ways that can’t be fuzzed over as the confirmation war approaches.

A top Democratic strategist tells me he now expects no more than a handful of Dems – eight at the max – to end up voting for Alito. I think it could be fewer. Remember, there are currently 55 Republicans, 44 Democrats and one independent in the Senate. We may well be headed for a “nuclear option” showdown, in which a Democrat would filibuster the floor debate on Alito.

Would the Republican leadership be able to muster the 60 votes needed, including a handful of Democrats, to shut it off? Not clear.

Would the GOP then go ahead and try to end debate with 51 votes, as opposed to the deeply traditional 60? Yes, I think the GOP would. That's the “nuclear” part.

Kaboom!

The fallout
So why is this bad news for either party? Aren’t spectacular fights to the death what both always want — and should want? Well, let’s take a closer look.

Isn’t it true (as the new NEWSWEEK poll shows) that most Americans support the legality of abortion in “all or most” cases? The answer is “yes” (58 percent).

Isn’t it also true (as the poll shows) that there is overwhelming support, even among Republicans, for permitting abortions when a pregnancy is the result of rape or incest, or when the mother’s health is at risk? Yes. (Among Republicans, the percentages of support are 70 percent and 75 percent, respectively.)

And isn’t it true that Democrats benefit when Republicans look cravenly beholden to their culturally conservative base? Yes ... at least sometimes.

So why wouldn’t Democrats benefit from an Alito Super Bowl? The answer is that, without the kind of subtlety and deftness they have yet to exhibit on cultural matters, the Dems risk looking like pure, pro-abortion crusaders — and that is a problem for them as they seek to return to the majority nationally.