Alito More Love

In a nutshell: It doesn't really matter much that in the confirmation hearings, Judge Alito declined to call Roe v. Wade "settled law." The phrase, despite the claims of Democratic senators who suddenly remembered John Roberts with fondness, is meaningless once you're on the Supreme Court. There is no such thing as settled law when you're on the highest bench in the land. Roe is settled only in the eyes of lower courts that do not set precedent.

With the Alito appointment all but secured (honestly, it was secured before the confirmation hearings, but whatever), abortion-rights proponents can seek some solace. Even if the judge supports overturning Roe v. Wade (which is probable), and let's say John Roberts did, too (not as probable), that still shakes out to only four votes (Scalia and Thomas being the other two) stripping constitutional protection for abortion.

The crucial court battle will be the next opening on the court, expecially since the next vacancy is likely to be that of the reliably liberal John Paul Stevens. Still, I suspect that a Republican president, even this numbskull 'n' bones, will be in no serious hurry to overturn Roe, which has long been an ace-in-the-hole rallying cry -- and thereby money-bait -- for that party's hardcore social conservative wing. It pays for Republicans to keep the overturning of Roe v. Wade to be a tantalizing, if ultimately unattainable, prospect.

Similarly, it pays for Democrats to fan fears that it could be overturned. If religion is the opiate of the masses, as Karl Marx once said (or was it Richard?), then abortion rights is surely the crank of politicos. For the sake of argument, let's say that Roe v. Wade is overturned. It's sheer speculation, but considering that most polls indicate Americans by and large support the right to choose, it is likely that all Blue states -- and even a fair number of Red states -- would act to keep abortion legal.

I am certainly no fan of Sen. Tom Coburn, but I don't see why he should be dismissed as a "loon" (as Daily Kos did) for daring to verbalize the obvious -- that the Alito confirmation hearings were all about abortion. If Democratic senators are allowed to be upfront that their opposition to Alito boils down to Roe, why is it any more troublesome for a pro-life lawmaker to admit that Roe is the determining factor for him or her?

If anything, the level of shrill protestations on both sides of the abortion issue obscure the complexity of what is at stake. I am solidly pro-choice (not that anyone was asking), but I am suspicious of both pro-choicers and pro-lifers who decline to concede that the decision is a tough and troubling one. There are a number of moral absolutes in this universe -- slavery is wrong, helping the disadvantaged is right, Carmen Electra could suck the cold off winter -- but I'm not prepared to say that a woman's right to abort a fetus is one of them.

Ultimately, the Alito and Roberts hearings illustrate the limitations of political theater. The judiciary's canons of ethical conduct dictate that a judge cannot pre-judge a case that could conceivably come before him or her. Subsequently, since anything can come before the Supreme Court, there is precious little real-world substance that the hearings can uncover.

The notable exception in the Alito hearings, of course, was the judge's role in the sexist, racist and homophobic Concerned Alumni of Princeton -- a membership that probably reveals more about his mercenary capacity for currying political favor than (hopefully) his actual worldview. At any rate, the grilling that Alito took over CAP was wholly appropriate, especially in light of his amnesia about the organization -- and too bad if Mrs. Alito got her Gilded-era panties in a wad over those Dems being mean to her wittle Sammy Whammy.











Otherwise, what the Alito hearings ultimately offered were a bunch of blustery narcissists who aren't really interested in asking meaningful questions hanging out with a reluctant witness who isn't really interested in offering meaningful answers.