The future is scary...

Even if the American people come to their senses and boot out the Republicans at the earliest available opportunity (2008), I'm afraid we will be stuck with some unwelcome legacies of the Bush years that will not be easily erased. First of all would be either the continuation or the continuing repercussions of the Iraq war. Secondly, we would continued to be saddled with a astronomical deficit. Thirdly, we would in all probability, be stuck with a conservative supreme court that is out of touch with the opinions of the public. Balkinization has some depressing prophesies of what might come to pass...

Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.

What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.

Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor and Rehnquist are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.[...]

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

The more I hear about this guy, the more I am convinced that we should fight him. In fact, there is no downside to fighting him tooth and nail. The strategic danger to using the filibuster for the Democrats has always been that it would backfire by making us appear obstructionist. But we've let Roberts through with nary a murmur. Harriet Miers was stymied by her own side. And now that Alito's anti-abortion stance is revealed, we have the ammunition we need to blast him as too conservative for the American public. I mean, check out this gallup poll:

–“If it becomes clear Alito would vote to reverse the abortion ruling Roe v. Wade, Americans would not want the Senate to confirm him, by 53% to 37%.”

–“If most Senate Democrats oppose the nomination and decide to filibuster against Alito, 50% of Americans believe they would be justified, while 40% say they would not.”

It's a no-brainer. Americans want women to determine whether to bring their pregnancies to term or to terminate. It's as simple as that. All the fug over whether Roe is good constitutional law is so much smokescreen to me. Go after Alito. Go after him hard, and make it crystal clear that we are going after him because of his stance on abortion.