[Mb-civic] An article for you from an Economist.com reader.

Sun Nov 6 12:09:39 PST 2005

- AN ARTICLE FOR YOU, FROM ECONOMIST.COM -

Dear civic,

Michael Butler (michael at intrafi.com) wants you to see this article on Economist.com.

(Note: the sender's e-mail address above has not been verified.)

Subscribe to The Economist print edition, get great savings and FREE full access to Economist.com.  Click here to subscribe:  http://www.economist.com/subscriptions/email.cfm 

Alternatively subscribe to online only version by clicking on the link below and save 25%:

http://www.economist.com/subscriptions/offer.cfm?campaign=168-XLMT

HOW TO SKIN A CAT
Nov 3rd 2005  

For activists on both sides, the bloodier a Supreme Court battle, the
better

TEXANS have a nice bit of folk wisdom about skinning cats: if you can
do it without splattering blood all over the walls, then so much the
better. George Bush tried to follow this path with his first two
Supreme Court nominations, choosing people with no record for anyone to
fight over. He did it so successfully in the case of John Roberts (a
conservative who had apparently never said anything) that Democrats
were left agog at his bloodless knifework; but when he tried to repeat
the trick with his own lawyer, Harriet Miers, he missed the cat
entirely and stabbed himself. Now, with Samuel Alito, a chastened
president is trying exactly the opposite strategy: skinning the cat
with a view to getting as much blood on the walls as possible.

Mr Bush's new pick for the court is a darling of the conservative
movement. When news of his appointment this week reached one gathering
of the tribe in California, the faithful reacted in much the same way
as normal people would do to news that they have won the lottery.
Unlike Mr Roberts, Mr Alito has a long track record: in his 15 years
sitting on the Third Circuit Court of Appeals he has written more than
240 opinions, including 41 dissents. He has supported the display of
religious symbols on government property and expanding the right of
police to conduct searches. In PLANNED PARENTHOOD V CASEY (1992) he
argued that the state could require married women to notify their
husbands before obtaining an abortion. In his dissent in US V RYBAR
(1996) he argued that Congress doesn't have the power to use the
commerce clause to ban people from owning machineguns. 

 As if this wasn't enough to guarantee fisticuffs at his confirmation
hearings, Mr Alito is being nominated to take Sandra Day O'Connor's
place. For the past 24 years, she has been the swing vote, voting
overwhelmingly on the left on social issues and generally on the right
on economic ones. To understand the seismic nature of replacing her
with a solid conservative, look at CASEY: Justice O'Connor cast the
decisive fifth vote to overrule Mr Alito's verdict, co-authoring the
opinion that argued that "a state may not give to a man the kind of
dominion over his wife that parents exercise over their children". 

Some cerebral conservatives, such as Princeton's Robert George, justify
the coming battle on pedagogic grounds: the country needs a proper
debate about the role of the Supreme Court. Conservatives should eschew
the stealth strategy not just because it often fails (stealth
conservative judges have a way of morphing into stealth liberal ones),
but because it misses an opportunity to shape public opinion. They want
to use the next few months--for that is probably what it is going to
take to confirm Mr Alito--to conduct a prolonged debate about the
constitution. Is it a living document or a founding text? Should judges
be chosen on the basis of what they believe about abortion and
affirmative action or on the basis of their legal reasoning? Should
courts take an expansive view of their constitutional role?

This all sounds very high minded. But there is a rather more elemental
reason why many other conservatives are spoiling for a blood-drenched
fight. They want revenge for what happened to Robert Bork in 1987, when
the distinguished conservative jurist was subjected to a campaign of
vilification. They want to get revenge for a series of judicial
decisions that have turned judges from umpires into (liberal)
philosopher kings. And many of them just want to be able to unleash the
huge conservative legal propaganda machine that they have spent the
past 20 years assembling for just such a fight. 

Liberal America also wants a battle. Liberals are equally keen on
defending their view of the Supreme Court as the ultimate guardian of
civil and reproductive rights. And they are equally keen on testing
their war machine in battle. No sooner had Mr Bush nominated Mr Alito
than People for the American Way vowed to mobilise 750,000 activists to
wage a "massive national effort". The left already has its story-line
in place: Mr Bush capitulated to the "far right" by jettisoning Ms
Miers and nominating a machinegun-loving male supremacist who will
overturn ROE V WADE, the ruling that protects abortion choice.

GO NUCLEAR EARLY
Yet conservatives have the edge when it comes to intensity. The reason
for this is simple: conservatives think that they have a good chance of
winning the Alito battle. The battle will not be easy, but the right
has two things on its side.

First, Mr Alito looks a strong candidate. He has such glittering legal
credentials that he earned unanimous confirmation to the Third Circuit
back in 1990 from a Democrat-controlled Senate. He also has a judicial
temperament. He hasn't engaged, as Mr Bork did, in a headlong attack on
the Supreme Court's liberal-leaning jurisprudence. Yes, he has earned
the nickname Scalito because he shares some views with the court's
leading conservative, Antonin Scalia, but he is a less abrasive
figure--more in the mould of Mr Roberts than his fellow
Italian-American. And despite being yet another Catholic, making a
potential five on the court, Mr Alito seems to believe in restricting
rather than overturning ROE V WADE: he struck down a New Jersey law
banning partial-birth abortion because it did not include an exemption
for cases where the mother's life is at risk.

Second, the Republicans are in a commanding position in the Senate. In
May, the "Gang of 14" (seven senators from each party) cooked up a deal
to avoid Republicans using the "nuclear option" (ie, getting rid of the
filibuster technique that Democrats can use to delay appointments).
Under the deal, the seven Democrats cannot block Mr Alito's nomination
unless they can demonstrate "exceptional circumstances". That seems
unlikely. If they break the deal, then the Republicans can press the
nuclear button. In retrospect, skinning cats was for wimps; real
conservatives are thinking about Armageddon. 

See this article with graphics and related items at http://www.economist.com/printedition/displaystory.cfm?story_id=E1_VTDRVQT

Go to http://www.economist.com for more global news, views and analysis from the Economist Group.

- ABOUT ECONOMIST.COM -

Economist.com is the online version of The Economist newspaper, an independent weekly international news and business publication offering clear reporting, commentary and analysis on world politics, business, finance, science & technology, culture, society and the arts.
Economist.com also offers exclusive content online, including additional articles throughout the week in the Global Agenda section.

-	SUBSCRIBE NOW AND SAVE 25% -

Click here: http://www.economist.com/subscriptions/offer.cfm?campaign=168-XLMT

Subscribe now with 25% off and receive full access to:

* all the articles published in The Economist newspaper
* the online archive - allowing you to search and retrieve over 33,000 articles published in The Economist since 1997
* The World in  - The Economist's outlook on the year
* Business encyclopedia - allows you to find a definition and explanation for any business term

- ABOUT THIS E-MAIL -

This e-mail was sent to you by the person at the e-mail address listed
above through a link found on Economist.com.  We will not send you any
future messages as a result of your being the recipient of this e-mail.

- COPYRIGHT -

Economist.com privacy policy: http://www.economist.com/about/privacy.cfm