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 wife.

No Surprise

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 alternative narrative.

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 Orleans.

Perhaps someone needs to go up to Capitol Hill with the message, “Heck of a job, minority members of the Senate Judiciary Committee.”

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.'