Now we have facts:

"More than 10 million viewers tuned into Wednesday's Democratic debate on ABC, making it the most-watched debate of the primary election season.

The debate, the first to air on a weeknight on a broadcast network, attracted an average of 10.7 million viewers between 8 and 10 p.m., according to Nielsen Media Research.

The debate topped the "reality" fare of "Deal or No Deal" on NBC and "Big Brother" on CBS during the 8 p.m. hour."

So from ABC's perspective, and certainly for George S and Charles G, the raucous, murderous, sharp-edged, animalistic idea-free style worked perfectly -- unless Nielsen also reported that many people turned off during the debate. I bet that didn't happen. Like the crowds of the ancient Coliseum, millions watched to see if vulpine George or ursine Charles would slash or bash to political death either of the two gladiators, or whether the two would otherwise finally conclude their andabatarian struggle, live, on the studio stage, with one fallen and the other triumphant.

So, blame the audience, ABC is concluding. They watched it, so they must have wanted it the way we gave it to them.

Some have questioned the propriety of Senator Graham participating in the so-called murder boards (the mock hearing sessions) for Alito, but Senator Feingold just raised an interesting series of questions.  The transcript's not out yet, but this is the nub of it:

Did Administration officials participate in your murder boards, did the question of the limits (or lack thereof) on Executive power come up especially as regards the NSA wiretapping American citizens at home, and to what extent did Administration officials advise you on how to answer those questions?

Alito basically said that Administration officials did not tell him how to answer questions.  This area is ripe for follow up later tonight or tomorrow, but it raises some fascinating and troubling issues, no?

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Senate Judiciary Republicans have just pulled Cathy Fleming, the incoming president of the National Association of Women Lawyers, from their list of witnesses testifying for Judge Alito.

Why?

Her organization refused to endorse him, saying "[a]lthough Judge Alito's former law clerks and professional associates interviewed by NAWL generally reported that he has had positive and supportive working relationships with women and has appropriately hired women and promoted them to senior positions, Judge Alito's interpretation of statutes affecting women and their families further reflects a narrow reading of the requirements of those statutes to the detriment of women's rights."

Ed. Note--Part I of this post can be found here.

In two broad areas especially, Alito promises to be a dangerous servant of the agenda.

Executive Power

1.  The first and most important is executive power.  As Dahlia Lithwick  and Sandy Levinson have astutely pointed out, there's reason to think that Alito's views on executive power are the main reasons Bush wants him on the Court.  Alito has not decided any cases squarely on point.  But everything in his background and record suggests he is likely to be extremely deferential to executive power and reluctant to assert a strong judicial role in checking it.  

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I have nothing very novel or surprising to say about the Alito nomination.  But on the eve of his hearings it may be useful to summarize the essential case against him.  

When Samuel Alito applied for a political job in the Justice Department in 1985, he wrote that he had been inspired to go into law by disagreement with the "activist" decisions of the Supreme Court under Earl Warren and other liberal policies.  He mentioned particularly decisions in the areas of "criminal procedure, the Establishment Clause, and reapportionment."   He said he believes strongly in "limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values."  He added:  "I am particularly proud of my contributions in recent cases [in the Solicitor General's office under Reagan] in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion."  He  advertised his membership in a group of Princeton alumni who objected to opening up Princeton to women and minorities.

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After the right wing interest groups, bloggers, professors and journalists succeeded in tanking the Miers nomination, I thought that the nominee re-do was likely to be demonstrably more right-wing, more entrenched in various positions over a longer period of time, and more grounded in theories that would lead to predictably right-wing rulings.  Miers' corporate counsel, managing partner, political hurly-burly background clearly admitted of more play in the joints than Bush's base could tolerate.  Still, over the weekend I held out a smidgen of hope that the President would get his dander up at the disloyalty of his erstwhile backers, that he would be goaded into picking someone moderate, just to show he cannot be pushed around.  That glimmer of hope was dashed Monday with his choice of Samuel Alito, Jr. to replace Justice O'Connor.  

Taking a look at Alito's abortion-related cases doesn't tell the whole picture, but it tells us something about a key concern.  One's thinking on abortion rights can be a window into that person's beliefs about individual rights, privacy, the role of courts, the role of legislatures, human foibles and fallibility, the ability of legislation to address social issues, and gender relations to name just a few combustible topics.  

Of concern to me was Judge Alito's opinion as a Court of Appeals judge on the panel that heard the challenge to Pennsylvania's abortion control law, enacted in the wake of the Court's decision in Webster v. Reproductive Health Services in 1989.  That case demonstrated that there were no longer five votes for Roe v. Wade, but it reached no consensus on what the applicable standards should be.  Many saw it as offering states the opportunity to try once again to enact abortion bans, or restrictions much more onerous than had been allowed under Roe since 1973.  Utah, Louisiana and Guam enacted bans on abortion.  

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Cross posted at Balkinization

What effects will an Alito appointment have on Supreme Court doctrine?  Fairly significant changes, particularly in the areas that social conservatives most care about.

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Two thoughts in response: oy and vey.

This is President Bush's early Christmas present to the radical right and his Halloween scare for the rest of America.  

Constitutional experts are already describing Judge Alito as being to the right of Scalia.  So much for a consensus nominee....  Savethecourt.org has the substance behind the rhetoric.

Cross posted at Balkinization 

This Chicago Tribune article suggests that President Bush has narrowed his choices to replace Justice O'Connor to two, Samuel Alito of the 3rd Circuit and Michael Luttig of the 4th Circuit.

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Cross posted on Balkinization 

Rumors are buzzing about who will be indicted in the Plamegate scandal, and what further revelations will develop.  Some people have even speculated that the Vice-President may be indicted or named as an unindicted co-conspirator.

But just remember that the President always has the means to stop judicial proceedings of his closest political associates from going any further. He can simply pardon persons indicted for a crime, or even those who have not yet been indicted.

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Cross posted at Balkinization

More evidence that the stealth strategy is not going over well with movement conservatives.

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Over at Balkinization, I've written a long post explaining why social science data from past confirmation votes suggests that President Bush may have an uphill battle with the Miers nomination.

The basic idea is this: Perceived qualifications and perceived ideology are both very important to the success of a nominee.  However, their interaction is particularly important.

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Cross posted at Balkinization.

I sympathize with the movement conservatives who are bemoaning the Miers nomination, even though I don't share their politics. President Bush promised them a forthright movement conservative in the mold of Antonin Scalia and Clarence Thomas. What he delivered instead was first a rock solid establishment conservative in Chief Justice John Roberts, and now an old-fashioned Dallas, Texas business conservative in Harriet Miers.

 

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Cross posted at Balkinization 

To understand why Bush picked Miers, you need to recognize three things.

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History shows that the most important time for Senators to put pressure on the White House about Supreme Court nominations is before the President chooses his nominee and becomes invested in defending the nomination.

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I think the answer is No; but won't pretend it's an easy call.

There are two kinds of arguments for Yes, the political and the substantive.

The substantive argument is that Roberts really isn't that bad, and is about the best we're going to get out of George Bush.  He has glittering credentials, is obviously very smart, and claims not to be an ideologue.   He says he respects precedent, is deferential to legislatures except when they exceed the clear boundaries of their authority, has no doctrinaire method (such as "originalism") for interpreting the Constitution, and will decide cases one at a time.  He says he has no particular personal or political views, at least none that will influence his decisions.  He admires his old boss Judge Henry Friendly, of whom it was said that nobody could tell if he was a liberal or conservative.  (Unfortunately no Senator asked him, "Judge, would you aspire to have it said of you, after five years on the Supreme Court, `We can't tell if Roberts is a liberal or conservative.'?"  He would have had to say yes, which would have driven his conservative backers into a panic.)

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"His testimony on the right to privacy mirrored that of Clarence Thomas during his Supreme Court confirmation hearing.  He refused to concede there was a general privacy right, resisting Senator Schumer's effort to force the term."

That's not from some liberal interest group.  According to the NYT, it's from a memo by right-wing all-stars Leonard Leo, Jay Sekulow, and Wendy Long.

Comforting, no?

Cross posted at Balkinization. 

If you read Judge Roberts' testimony carefully, you will see that he states that Roe is settled precedent whose continuing authority is determined by another precedent, Casey, and its rules for when you are allowed or not allowed to overturn an existing precedent.

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To go by what he told the Senate Judiciary Committee on Tuesday, John Roberts has never uttered a word in his legal career that was his own.  He was always speaking as a government staff lawyer expressing the administration's views, or as an advocate representing a client.  Asked about his memos as a Reagan staffer, which are all the evidence anyone has been allowed to see of his public positions, Roberts put a haughty distance between them and his present self. That was 23 years ago, he said, and anyway the positions were not mine, but my masters'.  Asked to say what then were his own views on matters of law or policy, Roberts declined to reveal them because he might have to decide a case involving them; but added that they were irrelevant in any case, because only the law and facts of those cases would matter, not his personal views.  (The senators absorbed this bromide disclaimer of the significance of politics, ideology and cultural preconceptions to the judicial function with the usual ritual approval, or bored resignation, that it always elicits.)  

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"They may be misleading, but they are his answers."

Senator Arlen Specter (R-PA), Chair of the Judiciary Committee regarding John Roberts

We've seen it before - Supreme Court nominees answering questions with vague statements and platitudes   But a look at what nominees have done after they have been confirmed shows the lack of meaning behind those words. That is why it's critical that John Roberts answers specific questions this week about whether he will uphold and protect America's basic constitutional protections.

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Roberts began yesterday as expected, with a ritual disclaimer of any preconceptions or biases. He would decide each case on the merits. He had no ideological agenda.  Presumably some of the Democratic Senators will challenge this; they were there when Clarence Thomas said he would be "stripped down like a runner" to do his job as a justice; and once on the Court energetically and single-mindedly pursued an ideological agenda.  We have no reason from anything in Roberts' record (except the occasional pro bono case, which Roberts himself has told us to discount since he was arguing as an advocate) to suppose he would do otherwise.  

Roberts has obviously programmed himself  -- as years ago he helped program Sandra Day O'Connor -- to respond to questions at his confirmation hearing with bland and vacuous generalities and polite evasions. Softball questions like, "Do you believe in stare decisis [following precedent]"?  or "Do you think that judges should be able to find unenumerated rights in the Constitution like the right to privacy?" are going to elicit answers that few could disagree with ("Precedent is very important to   stability in the law; but the Constitution itself is paramount, and precedents should be qualified and even overruled if on reconsideration they are clearly wrong: e.g. the `separate but equal' doctrine of Plessy v. Ferguson.")

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Roberts refuses to answer Specter's second question.  After Roberts says that one factor in applying stare decisis is whether the bases for the precedent have eroded, Specter asks if the bases of Roe have eroded -- not how Roberts would rule on Roe, just whether the bases have eroded.  Roberts refuses to answer.  Let the count begin -- that's one.  Will we hit triple digits?  It's going to be a looooong day.