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Editor, The Konformist
Alito Hearings: Democrats' 'Katrina'
By Robert Parry
January 14, 2006
For a constitutional confrontation at least five years in the
making, the Democrats on the Senate Judiciary Committee looked as
prepared to confront Samuel Alito as FEMA chief Michael Brown did in
responding to Hurricane Katrina.
As with the hurricane that zeroed in on New Orleans days before
coming ashore, there should have been no surprise about Judge Alito.
He was exactly what the Republican base had long wanted in a Supreme
Court nominee, a hard-line judicial ideologue with a pleasant
demeanor and a soft-spoken style.
Indeed, Alito has been such an unapologetic supporter of the Right's
beloved Imperial Presidency that Alito's one noteworthy assurance
that George W. Bush was not "above the law" was essentially
meaningless because in Alito's view Bush is the law.
Yet the Democrats were incapable of making an issue out of Alito's
embrace of the "unitary executive," a concept so radical that it
effectively eliminates the checks and balances that the Founding
Fathers devised to protect against an out-of-control President.
Bush even gave the Democrats a news hook to make the peculiar
phrase "unitary executive" a household word. Bush cited
his "unitary" powers just days earlier in signaling that he would
use his commander-in-chief authority to override the provisions of
Sen. John McCain's anti-torture amendment passed in December 2005.
Though the McCain amendment had been big news and Bush's
announcement of his personal loophole on torture had been reported
in the press the Democrats still failed to force this troubling
concept of an all-powerful President into the mainstream debate.
"Unitary executive" may have been the buzz of the blogs, but it was
barely mentioned on the evening news. The notion that Bush and Alito
believe the President has the power to abrogate the Bill of Rights,
authorize torture and seize control of independent regulatory
agencies got much less attention than a few tears shed by Alito's
But very little that happened during Alito's three days of testimony
should have come as a surprise to the Democrats.
The senators knew Alito was going to dodge direct answers to
questions about Roe v. Wade and other hot-button issues. They knew
the Right would rally its extensive media and grassroots operations,
even lining up people to cheer Alito when he arrived on Capitol Hill
(much as they did for Oliver North during the Iran-Contra hearings
almost two decades ago).
The Democrats must have realized that the mainstream media would
focus on the most trivial aspects of the hearings as well as on
the windiness of the senators' long-prefaced questions. The only
hope to change those dynamics would have been to present a strong
That alternative narrative could have been how the Right has spent
three decades steadily building its infrastructure and clout to
consolidate ideological control around an Imperial Presidency held
tightly in Republican hands and endorsed by a restructured Supreme
Court. [For details, see Robert Parry's Secrecy & Privilege.]
The Democrats could have built the drama by spotlighting the stakes
involved in Alito's nomination, that the final check and balance in
the U.S. political system the courts would be locked down by
ideologues who have long boasted of their determination to gain one-
party dominance in Washington.
By undergoing rhetorical liposuction, the Democrats also might have
trimmed down their flabby speechifying and instead posed pointed
question after pointed question to Alito, eventually making his
refusal to answer questions the central issue of the hearings, not
their own bloviating.
Does the President have the right to override the McCain amendment
and order the torture of detainees? What point is there in Congress
passing laws if Bush as the "unitary executive" can simply declare
them meaningless? What would Alito do if Bush announced that he
would begin ignoring Supreme Court rulings?
Since the "unitary" theory holds that independent regulatory
agencies must cease to exist, should the President have total
control over a revamped Securities and Exchange Commission? If one
of his contributors is caught up in an accounting scandal, should
the President have the power to order the SEC to look the other way?
If a media outlet criticizes the President, should he have the power
to order the Federal Communications Commission to cancel the
station's broadcast license? Would it be okay for Bush to give the
license to a political ally or a campaign contributor?
Since you, Judge Alito, have long promoted the theory of
the "unitary executive," where are the boundaries of the President's
powers? For the duration of the War on Terror, are there any
meaningful limits on the President's right to do whatever he deems
necessary? Judge Alito, how do you differentiate between a system
run by a "unitary executive" and a dictatorship?
Clearly, Alito would not have answered these questions. He would
fallen back on his ritual response of declining to comment about
issues that might eventually come before the Supreme Court.
But many Americans would have been shocked by Alito's refusal to
stand decisively on the side of a traditional democratic Republic
and against an autocratic regime. It also might have dawned on
millions of Americans what's at stake in this debate.
Another advantage would have been that some Republicans might have
been put on the spot.
Instead of letting Sen. Lindsey Graham, R-S.C., set the Democrats up
for the melodramatic moment of Mrs. Alito leaving the hearing room
in tears, the Democrats could have demanded to know why Graham, who
supposedly objects to torturing U.S. detainees, was coddling a right-
wing jurist who helped craft the legal arguments for the President's
right to torture.
Instead, the Democrats made their own ineptitude the issue, both by
preening before the cameras and pandering to their interest groups.
With few exceptions, when the Democratic senators weren't looking
silly, they were sounding craven. They failed to elevate the
importance of the hearing beyond whether Alito was an active member
of some creepy Princeton alumni group.
The Left's Media Mistake
In a larger sense, however, the hapless Judiciary Committee
Democrats reflect some of the damaging strategies that liberals and
progressives have followed for 30 years.
Rather than building a media infrastructure to match up with the
imposing right-wing message machine, the American Left has
concentrated on supporting interest groups in Washington and
doing "grassroots organizing" supposedly across the country.
The harsh reality, however, is that liberal interest groups in
Washington often are more concerned about churning their supporters
for money than getting results. The "grassroots organizing"
without any significant media to get out a consistent message has
become patchy and stunted, a political brownout.
The few bright media spots for the Democrats and the liberals have
come almost in defiance of the major funders on the Left.
Cash-strapped Internet blogs have had the courage to take on the
Bush administration and the major media but have limited influence
with the broad American public; progressive talk radio barely got
started because it was shunned by wealthy liberal funders; and
Comedy Central programming, such as "The Daily Show with Jon
Stewart," popped up as a cultural, not a political, phenomenon. [See
Consortiumnews.com's "The Left's Media Miscalculation."]
The lack of any significant media on the Left at least that
compares with the Right's media juggernaut has left Democratic
politicians feeling isolated, trying to triangulate the best deal
they can for themselves. Many leading Democrats seem to suffer a
kind of Stockholm Syndrome, in which they become passive or even
helpful in the face of their tormentors
At a time when many rank-and-file Americans are alarmed that the
Constitution and the continued existence of a democratic Republic
are in jeopardy, they see congressional Democrats more concerned
about avoiding unpleasant confrontation than leading the fight
against encroaching authoritarianism.
Some Democrats, like Sen. Joe Biden of Delaware, seem to think their
chief purpose in Washington is to be on as many network talk shows
as possible, a goal that requires them not to be seen as too extreme
or strident in their criticism of Bush or his administration.
All of these factors came together in the three days of hearings on
Alito. The Democrats looked disorganized, clueless, unprepared.
Though they knew this political disaster was bearing down on them
for months if not years, they looked as surprised and befuddled by
the predictable devastation as Federal Emergency Management Agency
director Michael Brown did when Hurricane Katrina flooded New
Perhaps someone needs to go up to Capitol Hill with the
message, "Heck of a job, minority members of the Senate Judiciary
Robert Parry broke many of the Iran-Contra stories in the 1980s for
the Associated Press and Newsweek. His latest book, Secrecy &
Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be
ordered at secrecyandprivilege.com. It's also available at
Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the
Press & 'Project Truth.'