Hang me for saying it, but it's time to confirm Alito

This isn't going to be a popular bit of pamphleteering with many regular readers - consider yourself warned in advance. But one of the good things about being a guest pamphleteer here and also about having Ron as a co-author at Running Scared, is that we've always felt free to disagree with each other on any given issue as long as the discussion remained adult and civil and we both kept our ears open to the other side. With that in mind, I have come here today to give my final opinion on the confirmation hearings of Sam Alito.

I don't much care for him in terms of his ideology, but I believe that the man should be confirmed after a full, thorough hearing and fair questioning.

There. I said it. I think Alito should be confirmed. But if our readers could take a moment's pause from sharpening your pitchfork tines and hold off on boiling the vat of tar, I'd like a moment to explain my reasoning. Last Halloween, when he was originally nominated following the Harriet Miers debacle, I authored a post at Running Scared which upset a lot of liberals. In it, I suggested that Alito might not be as bad as some would fear and that going into a knee-jerk reaction of opposing him might not be the best move.

A lot of water has passed under the bridge since then, but none of it has been strong enough to wash away my original conclusions. The confirmation hearings are underway, and his opening statements have been made. I was also influenced by a piece I read at Betsy Newmark's blog quoting a supporting statement penned by one of Alito's former clerks. I really do suggest you read that one with an open mind. I think you may find that Alito, rather than being someone destined to legislate from the bench in a conservative fashion, really does work hard to respect the rule of law and base his decisions on the available case law and applicable precedents.

Do I like him? Not really. He's clearly too conservative on many social issues for my tastes, and I will concede that the danger exists that his personal ideology may still influence some of his votes. But what are the alternatives? Let's say for a moment that the Democrats do manage to mount a filibuster, win over the Gang of 14 and avoid the nuclear option, sending the Alito confirmation down in defeat. What happens next? Do you really think that George W. Bush is suddenly going to slap himself on the forehead and exclaim, "Duh! Oh, I get it now! Instead of nominating a clone of Scalia I should have nominated a clone of Ginsberg! Let me just get out my rolodex of liberal judges and nominate one of them instead!"

Hardly. The next nominee will likely be worse. And both the Republican majority and the Gang of 14 are only going to put up with just so much opposition before they move to smack down the Democrats and put somebody in to fill the open seat on SCOTUS. I can assure you that the next choice could very well be worse.

As I said in my original Running Scared post linked above, the man has the qualifications. He oozes gravitas. If you're looking to oppose him based on his judicial credentials, you'll find that cupboard bare. And were his decisions that much of an indication of conservative bias? Look at Williams vs. Price and ACLU vs. Schundler, linked from that post. And take a particular look at Fatin vs. INS which has been quoted in so many subsequent cases at the Federal level. Alito has personally handed more defeats to Alberto Gonzales than any other judge and made many rulings regarding immigrants' rights and women's rights that would make a true neoconservatives squirm with discomfort. In each case, it looks like he ruled based on the case law available.

Even in the one case which progressives are trumpeting, Planned Parenthood vs. Casey, I think I'm seeing overreaction from many liberal pundits. The simple fact that he ruled in favor of a spousal notification law just isn't enough for me to "convict" him. His explanation for why he made that ruling, explained in his decision, seemed to make sense. Prior to that case, the Supremes hadn't ruled on spousal notification. The closest case law available was a ruling, written by O'Connor in fact, on parental notification. Alito's point was that if parental notification (with safeguards against abuse as needed) met the test for not imposing a significant barrier to access, then a spousal notification (as opposed to consent) law had to come in under that bar also. It was only afterwards that SCOTUS ruled against the spousal notification, establishing yet another precedent which could be used in the future.

With all of these factors combined, particularly given the prospects of who the next nominee will be should Alito be rejected, I think it's time for the Democrats to take a course of discretion being the better part of valor, ask him all of the tough but fair questions they feel are pertinent, and then just let the vote happen and see him confirmed. Mounting what could turn out to be a toothless resistance could cost them far more than they could gain from this.