Scalito’s Way

Tide broke for the religious right just a little too early

© Bryan Zepp Jamieson
11/3/05
http://zeppscommentaries.com/VRCW/scalito.htm

    Lest anyone despair for the Republic in the wake of the Scalito (aka Samuel Alito) nomination, a Gallup poll today should give most Americans a ray of hope, and the Democrats the backbone they’ll need to resist the lies, attacks and smears of the GOP echo chamber.

    The poll showed that a large number of Americans would oppose Scalito if it became clear that he would vote to overturn Roe v. Wade. Not just a plurality: most. The margin, Gallup was surprised to report, was 53-37%.

    By only a slightly smaller margin, most would support a Democratic filibuster to stop the nomination. The points on that were 50-40%.  

    Republicans have been crowing that the American people would not stand for Democrats being obstructionists. Obviously that is not the case. People expect the Senate to do its job and protect them from letting the religious right slip a dangerous radical onto the highest court in the land.

    The Republicans are coming off a long string of miscues and political foulups, most of which came from the White House. The Scalito nomination itself came in the debris of the Harriet Miers fiasco (and that one imploded so rapidly and so unexpectedly that Garry Trudeau, artist for “Doonesbury” had to torch a week’s worth of strips on Miers and go to previously-run episodes.  I got to see the victims; they would have been hilarious), and was seen simultaneously as a genuflection to the extreme right and as a frantic effort to detract from Iraq – where the death toll of US troops shot past the 2,000 mark – and the ongoing Plamegate and “fixed intelligence” investigations, and all the other problems that have beset this administration in recent months.

    But Harry Reid, who apparently has found his scrotum in recent months, pulled a neat maneuver invoking a seldom-used parliamentary rule in the Senate to force a closed session to account for the lack of action on the “fixing of intelligence” investigations surrounding the Downing Street Memos – about which the Republicans have, understandably, been dragging their heels. This snapped media attention from the Scalito nomination right back to the pre-war scandals which threaten to destroy this outlaw administration. The Republicans, not used to being out-flanked and forced to capitulate, fumed after agreeing to set up a bilateral committee to expedite a Senate investigation into the Downing Street matter. Frist called it a “stunt” and gleeful Democrats noted that Frist’s infamous videotape diagnosis of Terri Schiavo indicated that Frist had a keen grasp of what political stunts might be. Trent Lott also belly-ached about it, and all that did was give liberal outlets like AAR and Media Matters the opportunity to remind everyone of how the New Orleans catastrophe became real to Putsch only after he learned that one of Trent Lott’s palatial estates had been destroyed by Katrina.  

    If the Pubs’d had the sense to keep their yaps shut and just treat Reid’s maneuver as a routine Senate procedure, it might have gotten scant attention. But the Pubs aren’t used to being challenged, and whined loudly, and their captive media at Faux and Corporation News Network dutifully played echo chamber – to an audience that has become skeptical and unimpressed with Republican breast-beating. All the extra volume and whining did was convince people that the GOP had been caught out, and that one of the reasons they were so surprised was that the Dems nailed them red-handed trying to make the Downing Street Memos go away.

    At a time when the GOP needed the public to trust them, public reserve about the GOP, and concern about the roles the religious right and corporate boardrooms play in their policies, grew sharply.

    In the wake of the Miers implosion the public was less inclined to accept the Scalito nomination on blind faith. Less than half the public considered the Scalito nomination as being good or excellent, and nearly as many thought it only “fair” or “poor” – well behind the benefit of the doubt accorded Roberts.  

    As Scalito’s record comes out, doubts will continue to grow. Already, his efforts to uphold a law which demanded that wives notify their husbands if they are getting an abortion have gotten wide attention. Liberals and real conservatives were aghast that this judge felt the state should insert itself so strongly into the nature of personal relationships. That the law would have applied to women who were separated from their husbands but not yet formally divorced indicated that Scalito really is, ahem, divorced from mainstream thought. Then, too, there was the matter of permitting strip searches of children who had not been accused of any crime. Not just surly, hulking 17-year olds likely to have a .45 in their pocket; this particular case revolved around a ten year old girl.

    Just now emerging is Scalito’s record on the public’s right to redress against corporations.  It seems the judge is intent on protecting corporations from the American people.

    According to Ideoblog, a site kindly disposed toward Scalito, he had one decision, Pitt News v. Pappert, which “struck down a Pennsylvania statute prohibiting advertisers from paying for alcoholic beverage advertising by news media affiliated with educational institutions, reasoning under the Central Hudson test for commercial speech that the financial burden the regulation imposed infringed the newspaper’s First Amendment rights.” If I read that right, hard liquor companies are free to buy adverts in the local high-school student newspaper.

    In another case, Hakimoglu v. Trump Taj Mahal Associates, he upheld the right of casinos to lubricate gamblers with as much free booze as they wanted, and if a gambler’s judgement became impaired as a result, well, that was his tough luck.

    Another that will draw close scrutiny is Clowes v. Allegheny Valley Hosp., in which he essentially postulated that an employee had to show an employer intended discrimination when firing said employee. Not just show that discrimination took place – under the Scalito standard, that isn’t enough. The employee must show that the employer INTENDED to discriminate.

    Good luck proving that in court.  

    So Scalito faces a rocky road. The public is skeptical, the Democrats are willing to fight, and the public have indicated that they will back the Democrats if it comes to that.

    Quite aside from the pun on his name which suggests “Little Scalia,” he has one more cross to bear. Someone online made the quip, “Alito: isn’t he the judge who let OJ go?”

    That, at least, is one thing Scalito did not do. But the quip certainly won’t help in his uphill battle.