Tuesday, November 01, 2005

Strategery of Conflict

by Tom Bozzo

You can hardly click "Next Blog" without seeing commentary on the (Sc)Alito nomination. I'll add a few thoughts anyway.

Legal wingnuttia (via CT) is rapt with the strengthliness of the Alito selection โ€” nearly to the point of evincing behaviors that Alito may or may not agree they have a constitutional right to perform in private.

The nomination, as The Editors ruefully note, has the appearance of a checkmate move, what with Lindsey Graham searching Africa for enriched uranium on the administration's behalf, but nevertheless it's just as clearly coming from a position of weakness rather than strength. That is, for wobbly Republican incumbents, the choice is certain death from their wingnut constituents staying home, versus less certain death conditional on the Democrats getting their act together enough to convince independents that they don't really want to build a bridge to the 14th century after all. (While this looks like a case of adaptive expectations [tag: Rove not super-genius], adaptive expectations aren't always irrational.)

So where to attack? Given the truly strong path not traveled โ€” a credentialed center-righty who would effectively constitute a consensus candidate โ€” part of it is to operationalize what Ben at Badger Blues says:
Well, it seems that George Bush has run up the bloody flag. The man who once promised to be a uniter has decided that a bitter fight over an extremist judge is just what this divided country needs. Thanks a lot, George.
This has the nice Rovian feel of attacking one of the Bushists advertised, though false, strengths ('We're trustworthy unifiers'), and dovetails with reminders of a slew of other broken promises of the Bush administration (honesty, integrity, modesty in policy conduct) that have at least temporarily been thrown into relief by the Libby indictment and the ongoing Iraq debacle.

Then someone has to have the guts to go after the questionable assertion that Alito's reactionary and, on the face of it, wildly unpopular decisions, represent the natural working of a brilliant legal mind. Alito's FMLA efforts would seem to be most vulnerable, since pace Ann Althouse (link via Ocean), the reasoning that the FMLA remedy is disproportionate to the discriminatory conduct is wholly conclusory (*) and unlikely to pass the laugh test of a substantive evaluation of the net costs and benefits of accommodating workers with unpaid family leave (see also discussion at Angry Bear). So I wouldn't go around saying that Alito is even the best wingnut for the job (**).

In short, there's ample room for staunch yet principled opposition. The question, though, is how to use this to go nuclear and prevail.

(*) My armchair constitutional scholarship is that his citation of Justice O'Connor's Kimel opinion looks like less than a slam-dunk, too. In contrast to Alito's implication that the FMLA unpaid leave entitlement is per se excessive (the conclusory reasoning of the opinion doesn't shed much more light than that), in Kimel the court at least acknowleged that "Difficult and intractable problems often require powerful remedies, and we have never held that ยง5 [of the fourtheenth amendment] precludes Congress from enacting reasonably prophylactic legislation." But remember, I'm just an economist.

(**) As a member of Italian-Americans With Names Subject to Malicious Mispronunciation, I don't draw any inspiration from Alito's would-be Inspiring Personal Story, which strikes me as conflating success at Ivy League universities with personal virtue.
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