After Alito: What Now?
"It was a good week for Republicans," chuckled New York Times' house conservative David Brooks with a shit-eating grin, as he welcomed the likely confirmation of Judge Samuel Alito Jr. on Friday's "News Hour." His "liberal" debate partner, Mark Shields, was there to agree in yet another PBS program cleaving to the right while giving the appearance of being in the center.
The judge handled himself well, Brooks noted; he was not the angry ideologue pictured by the Democrats. Shields concurred, expressing admiration for his "judicial temperament."
And so, in media outlet after media outlet, yet another administration-supporting consensus was reached, in part, because of the way the media framed the story.
They had bought and sold the pre-hearing hype that this would be the ultimate ideological "showdown." When Alito was left standing -- after what was (falsely) pictured as his race through a gauntlet -- he was proclaimed the winner.
The Democrats Were Predictable
The Democrats were predictable in baiting Alito and trying to use comments he made in the 1980s, as well as his dense judicial record, against him. Like many generals, they were fighting the last war against court nominee Robert Bork, who took on his attackers, but whose arrogance and argumentative approach eventually did him in.
When Bork himself was asked to comment on Alito's well-choreographed but evasive performance, he said, "The object nowadays is to get confirmed. People will say pretty much [anything] -- or avoid saying pretty much anything in order to get confirmed."
Didn't the Dems realize Republicans would anticipate their knee-jerk approach, and then neutralize this dated and poorly executed confrontation strategy? Why weren't they on alert for dirty tricks, like the phony crying spell by Alito's wife, which was publicized by the same firm that promoted the Kerry-smearing Swift Boat veterans?
Weren't they aware that Alito would be well-coached (including by Sen. Graham, a member of their own committee), trained not to play to type and to conceal more than reveal? He followed the lead of Judge Roberts by saying as little as possible and acting as thoughtful and reasonable as he could.
What Republicans and their legions of spinners understood -- and Democrats do not -- is that the hearings are not so much about issues, but impressions; not about politics, but personalities; not about reality, but perception.
A Media Exercise
The hearings are a show-and-tell exercise put on for the media and through the media; they have become exercises of calculated denial and avoidance.
"Senate hearings on Supreme Court nominees are close to the point of having no point," says Martin Flaherty, a professor of constitutional law and history at Fordham Law School. "The nominees say nothing, and the Senate doesn't make them say anything. It was evident in the Roberts hearings [for chief justice], but is reaching absurd levels with Alito."
Writing in the Baltimore Sun, Stephen Kiehl and Abigail Tucker proclaimed the GOP strategy "practicing the art of saying little."
"Alito has been practicing, with varying degrees of success, the art of the nonanswer answer," Kiehl and Tucker explained. "Employed by politicians, business executives and others facing public scrutiny, the nonanswer has become particularly routine to those seeking judicial confirmation since 1987."
Despite this reality, many bloggers and other lefties urged the senators to focus on the details and play it tough (but not necessarily smart). They were peeved when the senators didn't crucify him. Being hostile and aggressive on small points can only be effective when you also recognize how the nature of the game has changed.
The Hearings Were a Farce
With all their erudition and preening for the cameras, the Democratic senators never laid a glove on Alito throughout the 18-hour ordeal. Rather than excite the public by inciting outrage, they tuned out the audience by turning the hearing into a hard-to-follow graduate seminar in legal philosophy, which could only be understood by lawyers. They even bored themselves -- Sen. Biden asked an 11-minute question, and Sen. Leahy said he had to stop himself from snoring.
Many important questions went unasked -- and most went unanswered. (Alito wouldn't even endorse his own state's favorite son: Bruce Springsteen. When asked if he was a fan of the progressive rocker, he would only say, "I am to some degree, yes.")
The Democrats' third-degree failed, in large part, because big media did not help the public understand the issues or even do much digging of their own. A study of press coverage by the Progress Center found inaccurate reporting and virtually no on-air commentary by progressives. Alito, who couldn't remember what he didn't want to remember, was never really taken to task. He was taken, instead, at face value. His references to having an "open mind" were given a pass.
If we had better media, we would not be facing Bush's takeover of the Supreme Court.
So, what now? On Saturday, President Bush called on the Senate to confirm Alito quickly, echoing the media consensus that he approached the law in a "thoughtful, fair and open-minded way," and would not impose his personal views. The Senate is actually not expected to vote on the Alito nomination for about two weeks, but a stop-Alito filibuster is unlikely.
This pathetic judge seems a shoo-in. Nevertheless, some on the anti-Alito left are blowing their bugles and cranking up the volume of their rhetoric. One writes:
"What team ever won by deciding at the end of the first quarter that it wasn't worth playing the rest of the game because they were already behind? Do you not understand that we are the majority? Turn off your cable television. Pay no attention to corporate media propagandists who relentlessly sell you on your own defeatism. Dedicate your lives for the next two weeks to saving our country. Dedicate your lives to getting as many people as possible to call their senators."By all means, let your senators know how you feel-- but also understand that they control the Senate, and they control the media. Understand that Democrats and their supporters must do a better job of using the media and not focusing so heavily on Beltway events. Dems must rebuild their base for progressive politics, as the GOP built its base. This will take grassroots organizing, a more sophisticated communications strategy and new media platforms.
The senators we have -- including the three GOP-lite Democrats who voted for John "good-looking and All-American" Roberts -- reflect the compromised state of the party and the weakness of its approach. It can't win, because it has already lost its values, vision, unity and passion.
More than lobbying is needed to resuscitate its corpse and renew our democracy. Media reform must become part of the equation.