Opposition to Alito Losing Traction? Not Likely

Courtesy of Blogometer, it seems that some on the right think that we are "losing traction on Alito." That's the argument being put forward by the rightist Catholic group Fidelis and the equally rightist Committee for Justice in a recent memo. (The memo's dated December 29, but Joe Cella of Fidelis just posted it to Red State yesterday. Apparently, Fidelis is losing traction on memos.)

They cite as their proof two things. One, the Alliance for Justice'sRolling Justice Tour was not a huge success. And two, they cite the Washington Post polling from mid-December that found 54% support for Alito's confirmation, with 28% opposed and 19% having no opinion. On the first point, I'm not too sure the success or failure of the Rolling Justice Tour is a good measure of progressive success in opposing Alito. And on the second, I'd have to point to another recent poll from the Wall Street Journal. That poll found 34% in favor of, 31% opposed to, 34% unsure about Alito's confirmation -- an even split all around.

The Journal poll did find some serious opposition to Alito on one front though. A hefty 69% would oppose Alito's confirmation if he "would vote to make abortions illegal." That actually mirrors the findings of the Post poll, in which 61% said they would want Alito to uphold Roe v Wade.

Now, being a conservative Catholic organization, Fidelis touts themselves as "principally focused on protecting the right to life." Clearly they support Alito because they think he's anti-choice. But if that's true, then a majority of Americans doesn't support him. So I'm not quite sure how they can claim that the polling on Alito works in their favor.

But the most important point here is that, until the confirmation hearings begin and Alito starts answering questions, the polling on his confirmation -- positive or negative -- doesn't really mean all that much. And an attempt to read into the relative success of the Rolling Justice Tour a trend on public opinion of Alito is downright hilarious.

Republicans Not Confident About Alito Hearings

In one of the most brazen examples I've ever seen of the media rewriting Republican talking points as a news story, The New York Times this morning has an article that engages in some serious expectations-managing in preparation for the Alito confirmation hearings. Media outlets distributing GOP talking points is always a bad thing, but there is a silver lining here. The good news is that it's so blatantly a Republican message that it's pretty easy to see through.

"He is not going to be the well-manicured nominee," said one participant in the rehearsals, known as murder boards, at which Republican lawyers have played the roles of interrogating senators. "That is not to say it is going to be worse. It is just going to be different."

... two of Judge Alito's supporters who participated in the murder boards, speaking about the confidential sessions on condition of anonymity for fear of White House reprisals, said they emerged convinced that his demeanor was a political asset because it gave him an Everyman appeal.

"He will have a couple hairs out of place," one participant said. "I am not sure his glasses fit his facial features. He might not wear the right color tie. He won't be tanned. He will look like he is from New Jersey, because he is. That is a very useful look, because it is a natural look. He's able to go toe-to-toe with senators, and at the same time he could be your son's Little League coach."

What is more, this participant said, Judge Alito displayed a "street smart" New Jerseyan's willingness to talk back to his questioners. Unlike Chief Justice Roberts, Judge Alito often turned inquiries back on the lawyers who were quizzing him, politely asking them to spell out exactly what they meant, two participants said.

Clearly, John Robert's smooth performance during his hearings was the key to the public support for his confirmation. He came off looking to many like what they expected a Supreme Court Justice to look like. Alito's Republican handlers are pushing this silly "Everyman" narrative in an attempt to manage public expectations. Oh, he's not being combative -- he's just a Jersey Everyman. But is that really what people want in a Supreme Court nominee? Using Robert Bork as an example, I'd say it's not. (And as a side note, let me say that the 'guys from Jersey wear funny-looking glasses and the wrong ties and have pasty skin' meme in here is bizarrely insulting and could only have been written by Beltway Insider morons who think it's like a compliment.)

Though some of the polling would indicate that many of those polled -- or maybe it's just the pollsters -- have a poor understanding of the legal issues surrounding the current domestic spying scandal, I would say that these nomination hearings will provide a perfect forum for education on the topic. Alito will be specifically called to answer for his Reagan-era defense of Nixon-era illegal and warrantless domestic spying. Though the media's done a terrible job of actually reporting the facts of the legal issues at hand, Democrats on the Judiciary Committee will be giving quite a few live interviews, affording them a good opportunity to speak directly to the public and clarify some of the misconceptions.

I have no idea what Alito's confirmation hearings will look like. But the Republicans who do seem to think it's not going to be pretty. After such a clean confirmation with Roberts, messy hearings for Alito do not bode well. "Everyman" or not, it sounds like Alito's in for a bumpy ride.

Alito Supports Illegal Wiretaps

Back when Harriet Miers' nomination to the Supreme Court was pulled, I profiled a few of the likely candidates to be nominated next. First on that list was Samuel Alito. I wrote then and still believe today that "Alito knows exactly what his right wing masters want from him and will deliver." Next on the list was Michael Luttig, who I'll get back to in a moment.

There's a very timely bit of news today that, while working for the Reagan Justice Department in 1984, Supreme Court nominee Samuel Alito wrote that federal officials should not be subject to accountability for ordering domestic wiretaps without a legally required warrant. However, he felt strongly enough about the unpopularity of his opinion to write that the administration should not make that case publicly.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court found.

This speaks directly to the reasons the Bush administration chose Alito over Luttig. During the Miers debacle, one of the reasons Republican insiders gave activists for supporting her nomination was that she had been "Heavily Involved In The War On Terror," according to one RNC memo. Alexander Bolton highlighted this fact in an article for The Hill. (Emphasis mine.)

Ken Mehlman, chairman of the Republican National Committee, yesterday held a conference call with conservative leaders to address their concerns about Miers. He stressed Bush's close relationship with Miers and the need to confirm a justice who will not interfere with the administration's management of the war on terrorism, according to a person who attended the teleconference.

Bush knew that Alito would not stand in his way while he skirted the Constitution. Contrast this with Michael Luttig, who is easily as conservative as Alito, but much more willing to buck the GOP party line in the interest of the law. I wrote as much in my speculative post about who Bush would nominate next. Here's The New York Times on Luttig's recent admonishment of the administration's tactics in handling Jose Padilla.

In today's opinion, written by Judge J. Michael Luttig, the court said the panel was denying permission to transfer Mr. Padilla as well as the government's suggestion that it vacate the September decision upholding the detention of Mr. Padilla for more than three years in a military brig as an enemy combatant.

Judge Luttig, a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court, said the panel would not agree to government's requests because that would compound what is "at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court."

Judge Luttig wrote that the timing of the government's decision to switch Mr. Padilla from military custody to a civilian criminal trial just as the Supreme Court was considering the case has "given rise to at least an appearance that the purpose of these actions may be to avoid consideration of our decision by the Supreme Court."

I wondered why Bush would nominate the lesser-known Alito over Luttig, who's seen as something of a judicial rockstar in conservative circles. Now I have my answer. Luttig wouldn't have been the Bush administration's errand boy on the Supreme Court. That's a role Alito has proven himself more than willing to play.

Richard Morin, Unsound Journalist

From the Washington Post's polling director Richard Morin's online chat yesterday:

New York, N.Y.: When a newspaper like The Post commissions a poll, it gives the result prominent play, usually on the front page. But when a different organization conducts a separate poll, that poll's results are given much less prominent play, and often not mentioned at all. The implicit assumption is, "Our poll is better than theirs." Is this sound journalism?

Richard Morin: See the last answer. It would be unsound journalism to ignore other survey results, particularly if they offer insights your own may lack. But to give them as prominent play? No, and I think it is unreasonable to expect us to.

The Washington Post put on their front page a story by Richard Morin titled 'Majority of Americans Support Alito Nomination'. A Fox News poll just showed Alito with cratering approval ratings.  Morin's story clearly ignores other survey results which present completely different findings, something he just called unsound.  It's clear this is not an isolated incident - Chris just documented Morin's failure to live up to standards he sets for himself.  

The ombudsman for the Washington Post can be reached at by e-mail at ombudsman@washpost.com or by phone at 202-334-7582.  Please be polite, but be sure to ask her why Richard Morin ignored other recent polls on Alito despite depicting precisely that behavior as 'unsound' journalism.  If you hear back, let me or Chris know.  

This corrupt polling nonsense needs to stop.

Right-wing Threatens Kennedy, Biden, over Alito

The Republicans are making political threats on Alito.  They must be scared:

The GOP team working with the White House to win confirmation of conservative Supreme Court nominee Samuel Alito is putting out a warning to Alito's Democratic critics: Question his ethics and character at your own peril. In their sights: Sens. Edward Kennedy and Joe Biden. "We're absolutely prepared to have an ethics debate with Teddy Kennedy," says one insider who mentioned the "C" word: Chappaquiddick. "Questioning Alito's credibility and character will be hit back hard," said one of the Alito supporters.

I wonder how Alito feels about this.  Does he believe in threatening Senators for votes?  How about Bush?  Or any Republican Senator?  Do Republicans believe that threatening to accuse Democratic Senators of ethics problems is a legitimate political subject when trying to pick the next Justice of the Supreme Court?

I'd like to see Republicans try and evade the responsibility of issuing this naked threat.  And I'd like some reporting on this smear tactic, since they are being so public about it.

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