It really was never much of a contest.
For three days, Democratic Senators flailed about wildly looking for all the world like blindfolded children trying to smack a pinata, so elusive and more intelligent was their putative quarry. In the end, they only managed to hit themselves on the noggin while the nominee walked away laughing after getting all the candy.
The confirmation hearings for Samuel Alito to be Associate Justice of the Supreme Court may have proven that liberalism has lost its fighting edge. And the reason is that it is no longer politically viable to try and tar and feather conservatives with the appellation of “racist” or “sexist” simply because someone disagrees with the public policy prescriptions of liberal interest groups like the NAACP or NOW. We may very well have moved beyond the point where a nominee who differs with liberals on affirmative action and abortion can be casually smeared with those epithets simply because they have a different point of view, one that is supported if not by a majority of Americans then certainly by a healthy minority.
It used to be easy for the left. A little twisting of the facts here, a hint of “insensitivity” there, and before you knew it, their reliable allies in the media would fill in the blanks and present the nominee as a closet bigot. Since at least the confirmation hearings for Justice Rehnquist in 1971, conservatives have had to endure the shameless pandering of Democrats to minority interest groups, energizing them to oppose nominees because confirmation would mean “rolling back the hard won gains of the civil rights movement” or “the women’s rights movement” or “the environmental movement” or any other “movement” the Democrats could put the fear of God into by raising the specter of a conservative on the court.
No more. If this week proved anything, it is that the left can no longer hurl scurrilous charges that a conservative is a dishonorable mugwump simply because they are a person of the right and then have the public swallow the smear hook, line, and sinker. These days, the people demand a little more proof than Ted Kennedy darkly hinting that Concerned Alumni for Princeton is actually a haven for closet Kluxers.
That’s not to say the liberals on the Committee didn’t try their best. Ed Morrissey points to this exchange between Senator Shumer and Judge Alito where the preening Senator from New York attempted to prove that Alito is a cad because he doesn’t stand up for “the little guy:”
SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.
In the first case, you said to that retarded individual, “Sorry, you’re out of luck.” In the second case, you said to the government, “I’ll make your argument for you.” And that doesn’t seem even handed to me.
ALITO: What I’m talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.
And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don’t raise it.
SCHUMER: Now, that applies to the government as well as to the defendant?
As Morrissey points out, the relevant statute was voted on by Shumer and the fact that he either didn’t remember or didn’t understand the ramifications of what he was voting on only shows the Senator from New York to be as clueless as a day old marmoset.
The point is that this line of attack used to work like a charm for liberals. But the rise of alternative media such as blogs and talk radio means that they can no longer get away with it.
Even the New York Times was having trouble trying to get the smear machine going:
In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.
But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court’s two most conservative members, Justices Antonin Scalia and Clarence Thomas.On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.
“In interpreting the Constitution,” Judge Alito said Wednesday, “I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.”
I daresay that this view of the constitution is hardly out of the mainstream and the Times knows it. If there one thing that Americans are generally sick of when it comes to the judicial branch of government, it is the belief that judges constantly overstep their authority. This simple statement of Constitutional fidelity enjoys much more support among the broad public than the out of touch liberals on the Judiciary Committee realize.
In the end, it is they who are out of the mainstream, not Judge Alito.
This has been one of the more revealing confirmation hearings in memory not for what the nominee has said but for highlighting how the tactics of the left in opposing conservatives have failed utterly. It remains to be seen whether or not Democrats will pay a price at the polls for their underhanded tactics. I tend to think not as few beyond the beltway were watching these hearings. But if the failure of their tactics means anything, it is further proof that the tired, wretched line of attack that liberals have engaged in for more than a quarter of a century against conservatives may finally have outlived its political usefulness.