Fighting Alito "to the bitter end."

On the conlawprof email list today, there was some talk about my NYT op-ed [permanent link to full article here], which led me to write:

I'm mostly just arguing against the mental shortcuts embodied in the Scalito concept. We've got a 15 year record that deserves respect and reading. To pigeonhole a man like this offends me. What I most want is to see strong judicial minds on the Court, not mediocrities. I hate to see the political process work out to put bland, weak persons on the Court. I want strong liberals as well, by the way. I miss the passionate liberals of yore.

That caused another listmember to observe that you have to get a liberal president elected first. I responded, "Do you win elections by fighting down a man like Alito?"

That provoked an interesting response from Texas lawprof Sanford Levinson, which he gave me permission to quote here:

I don't think that Alito has much to do with winning or losing the next election. Rather, the arguments for fighting his nomination to the bitter end (in spite of what seem to be genuinely attreactive qualities in the man) are twofold:

a) This is drawing a line in the sand with the current Republican leadership and its take no prisoners style of governance. If they want this nomination, they're going to have to "go nuclear," which means, ironically, that a Democratic President would in fact be able to make some liberal nominations. As I wrote earlier, I just don't trust the current Republican leadership to play fair with a Democratic President in this regard, which is why I think it's utterly beside the point that Ann would like some strong liberals as well as strong conservatives on the Court. There are a lot of things I'd like, but the question is how do you get that happy result, and it's not by having faith in the good will of people who have been demonstrating for the past decade that they have only contempt for those who disagree with them.

b) The brilliance of the Bush nomination strategy (save for Miers) is that he's trying to tie up the Court for the next 25 years. The conservatives are relative youngsters, given todays lifespans. The most likely next retirees are Stevens and Ginsburg. With Roberts, Alito, and Thomas on the Court, that is a strong conservative presence for the next 25 yeas, when Alito will be only 80. It's a good calculation that Republicans will be able to make two appointments among the successors to the other six justices, when the time comes. This is one reason why life tenure on the Supreme Court is so pernicious. If we were talking about a single 18-year term for Alito (and if everyone else were serving 18-year terms), then I'd be open to Ann's generosity of spirit, which speaks well for her. But, again, that's not the world we live in.

I certainly agree that life tenure makes Supreme Court appointments especially important, and I think there is something to be said for switching to 18-year terms now that people live so very long. I do think there are problems with set terms: We'd know which seats were going to open up as we approached each presidential election, and that might be a bad thing. And since justices could also quit or die instead of serving out their terms, you couldn't keep the terms neatly staggered. I would prefer to try to establish a cultural norm that justices should not stay too long on the Court. We could scrap this notion that it's inappropriate to criticize them for clinging to their spot into extreme old age and ill health. Apply some moral suasion for a while, and see how that goes before trying to amend the Constitution.

But Levinson's main point is that Democrats can't trust Republicans to play fairly. Rather than participate in the creation of a new era of confirmations in which senators respect well-credentialed nominees, Democrats ought to force the nuclear option. Then, assuming the Democrats have a majority in the Senate, their President will have his choice, with no need to expect the Republicans to do the right thing. I think it would be a terrible shame to think that colleagiality in the Senate has fallen into such a state of irreparable mistrust. If the Democrats treat Alito fairly, at some future date they will be able to point to what they did and demand the same for a Democratic President. If they fight "to the bitter end," how will things go in the future? Levinson's view depends on a very pessimistic vision of where we are now. Ironically, the pessimism of the Democrats damages their electorial prospects.

I stand by the implication in my question Do you win elections by fighting down a man like Alito?