The Alito Myth

Of all the outlandish myths that the Lieberman-haters peddle, none is more ludicrous than their charge that Joe Lieberman put Sam Alito on the Supreme Court.

No matter how many times you remind them that: A) Joe Lieberman spoke out against Alito's nomination; B) he voted against it; C) a filibuster was doomed to failure and thus amounted to a meaningless and ultimately destructive gesture; the Lieberman haters keep claiming that Lieberman is responsible for Alito getting confirmed, simply because he did not back the futile filibuster.

Case in point: the hysterical mailing from the National Organization of Women that was reported on in today's Hartford Courant.

In a Lamont mailing, Rosemary Dempsey, president of the Connecticut NOW, said Lieberman's refusal to back a filibuster was "a slap in the face to every woman of this state, no matter her political beliefs, economic status or race."

Beyond explaining why NOW has zero credibility in the mainstream political world, this quote epitomizes the irrationality and disingenuousness of the purge campaign being waged against Joe Lieberman. Compile a very strong record on reproductive rights and on women's rights, vote against the nomination in question, get NARAL's endorsement, and you still get accused of slapping women in the face.

It also underscores the desperate need for some perspective on this particular issue.

Up until this session of Congress, the filibuster was not even considered a fringe option for blocking Supreme Court nominees. With one notable exception, the case of Abe Fortas in 1968, the tactic had never been invoked to block a Supreme Court nomination. According to the official account by the Senate historian, Fortas was not torpedoed because of his ideology, but because of serious ethical issues.

As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, [Senate Minority Leader Everett] Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

That all changed last year with the Roberts and Alito nominations. Some in the Democratic family decided that Bush's high court appointments had to be blocked by any means necessary, and the threat of a filibuster based purely on ideology was openly discussed. This of course prompted the whole showdown over the so-called "nuclear option, with Republicans threatening to change the Senate rules to permanently bar the use of filibuster for Supreme Court nominations if Democrats used the tactic against John Roberts or Alito.

Lieberman and other moderate Democrats then worked with the reasonable elements of the Senate Republican caucus -- the so-called gang of 14 -- to craft an agreement that would protect the right of the minority to filibuster court nominees in the future in extreme circumstances. That was his great sin -- finding a compromise with Republicans that helped Democrats, by preserving the precedent that had been followed for the entire history of the filibuster.

If Lieberman had supported the filibuster, it would not have changed the outcome at all. It would have, though, threatened the agreement he had made, which at the moment was the only thing standing in the way of the nuclear option being triggered and the filibuster being eliminated completely as a check and balance in Supreme Court nominations.

If Lieberman and the other members of the Gang of 14 had broken their word and backed the filibuster, it may have derailed the Alito nomination temporarily. But it would have had disastrous consequences, setting in motion a chain of events that ultimately would have resulted not only in the end of the filibuster as we know it, but in Alito getting on the bench in the end once the Senate rules were changed. Talk about a pyrrhic victory.

These subtleties are of course lost on the Lieberman-haters. By their dipso-facto kind of logic, Republicans are evil, compromise with evil is evil, and thus even a compromise with Republicans that helps Democrats is evil. Moreover, because Joe Lieberman has compromised with Republicans at times in the past, that makes him even more evil than the other Democrats in the Gang of 14 and a deserving a much higher level of blame.

Presto: Joe Lieberman's opposition to Alito is magically transformed (re: twisted) into support for Alito. George Orwell would be proud.

Sadly this is yet another case of scapegoating Joe Lieberman -- not just for George Bush's actions, but for the Democratic Party's impotence. The Democratic Party failed to put up a candidate who could be beat Bush in 2004, which was the best way to stop him from appointing right-wing judges to the court. That was not Joe Lieberman's fault.

In addition, the Senate's Democratic leadership, and the Democratic members of the Judiciary Committee, failed to make a compelling case to the American people as to why Alito was so unfit for the Supreme Court that his nomination justified the extreme use of the filibuster. That was the only way that the Democrats could have won the nuclear option showdown, by having the bulk of public opinion on their side. Again, not Joe Lieberman's fault.

Now let me be clear: honest people can disagree over the question of whether the Alito nomination met the extreme circumstances threshold. There is a credible argument he did. My point is that the Senate Democrats did not present a convincing enough case to justify blowing up the institution over this nomination. Moreover, the question became moot when the other members of the Gang of 14 decided that Alito did not meet that test. Once that happened, if Lieberman had broken ranks and supported the filibuster, he would have accomplished nothing, other than momentarily appeasing his critics and weakening the agreement that was preserving the filibuster in the first place.

None of this will persuade or mollify the Lieberman haters, who have already convicted him in spite of the evidence. But for those voters who care about the truth, they need to know that Joe Lieberman did right by Democrats throughout this episode. He opposed Sam Alito AND protected a critical check on presidential power. To say otherwise is a slap in the face of reality.