Let the flailing begin

I’ve been watching the C-SPAN replay of Judge Alito’s opening day, and Alito appears to have the committee Democrats pretty much where he wants them. The Dems will be hard-pressed to lay a glove on him when it comes to his specific rulings, nor will the ins-and-outs of these rulings be of much interest. Instead, the Democrats must rely on broad themes, and their opening statements sounded several of them.
The major theme seems to be that Alito will be the tool of a power-hungry, imperial president. The problem is that there’s no evidence of this in his rulings — apparently he hasn’t ruled on any big-ticket questions relating to the president’s war power or the war on terrorism (ironically, John Roberts, with a much shorter judicial tenure, had). Once Alito agrees with Justice O’Connor that war does not provide the president with a blank check, and salutes Justice Jackson’s analysis of the relationship between presidential and congressional power, where do the Dems go? They can’t expect answers about issues like the NSA intercept program that are almost certainly heading to the Court. Nor can they expect any mileage from the “unitary presidency” meme or from the fact that Alito favored having the president say what he thought legislation he signed into law meant. This is inside baseball, and Alito has the better of the argument in any case. The Dems can cite the fact that Alito has worked in the executive branch, but to most Americans that sounds like public service, especially commendable on the part of someone who is talented enough to have become rich in private legal practice.
The other theme, of course, is abortion. The Dems will rely on Alito’s pronouncements as a Justice Department lawyer, particularly those he made when “applying for a promotion.” If he embraces what he wrote, he will be portrayed as too extreme to succeed Justice O’Connor. If he does not, the Dems will question his honesty.
But this isn’t much of a trap. I hope Alito will say that he believed what he wrote, but that he can’t say whether, 20 years on, he would or would not vote to overturn Roe v. Wade, particularly since the Supreme Court has subsequently reaffirmed the decision. At that point, the Dems are back where they were with John Roberts — holding a losing hand.
In short, expect lots of flailing, and not just from Joe Biden.
UPDATE by JOHN: Hugh Hewitt interviewed Erwin Chemerinsky tonight; Chemerinsky agreed that “[Kennedy] was wrong.”


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