It's the fight that counts

Crossposted on Dailykos:

We've been told over and over again that the odds are against us - that there's no way to get 41 votes and block the Confirmation of Judge Alito to the Supreme Court.

But I think that those on Dkos and elsewhere among the Netroots movement have come to realize that it's not about the ends, it's about the means. It's about whether we truly have the power to spur our Representatives to Fight the Good Fight.

We've been joined by Senator Kerry and by Senator Kennedy in the last few days. The momentum is on our side, the tide is behind us -- it's time to put your backs into it lads.

This is a critical moment in American History. The founding fathers clearly envisioned this day when they created the Senate.

Madison in Federalist #51

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil:

Ultimately the method developed in government to protect against the tyranny of majority factions was the creation o f the Super-majority and tools such as the Filibuster. It must be remembered that these tools exist precisely to protect the rights of the minority, of the disenfranchised and the disaffected from the will of a powerful majority faction.

More from Madison.

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Judge Alito clearly represents the power of the (financial) majority against those of the minority, and threatens to tip the balance distinctly away from individual rights for the next several decades.

Whether he can or can't be defeated, Democrats, Liberterians and Consciencious Republicans who care about civil Liberties alike, must take a stand or we will all likely suffer the long-term consequencss of this nomination.

It is also quite ironic the Judges such as Alito call themselves "Federalists" and join groups such as the "James Madison Society" - when it appears they know little of either subject.

Alito has character issues, which have come out in his relationship to CAP and to Vanguard. Either he truly supported the repressive goals of CAP, or doesn't and he commited fraud by listing his membership with that organization on his DOJ job application.

Either he is incredibly absent-minded, or he commited perjury when he claimed during his first judicial confirmation that he would recuse himself from cases in which he held a personal financial interest.

He refused to answer questions about Roe arguing that there are upcoming cases related to Roe currently before the court, yet he did comment on Reapportionment - despite the fact that there are several Redistricting Cases which will also soon be before the court. (Including the Texas Case involving Indicted Former House Majority leader Tom DeLay) Ultimately, with a lifetime appointment, just about any case might come before the court. We have to refurm the confirmation process so that the nominee has to answer questions. Answer that not neccesarily show how they plan to rule of future cases, but that make their method of thinking known, rather than play hide and seek with the Senate.

Besides his integrity, there is also his judgement to consider.

Alito on Federal Power and Responsibility from from the ACLU:

While in the Solicitor General's office, in a brief before the Supreme Court in Mitchell v. Forsyth, Alito advocated that the Attorney General, who had authorized illegal wiretaps of Americans, was entitled to absolute immunity for any personal liability.9

In addition to the extremely broad view of executive authority taken in his earlier writings, Alito has also taken a narrow view on congressional power in his judicial opinions. For example, in United States v. Rybar, Alito argued in dissent that Congress had exceeded its power under the Commerce Clause by making it a federal crime to possess a submachine gun, despite the federal government's long history of regulating firearms.

In another example of ruling to limit congressional authority, Alito wrote the majority opinion in Chittister v. Department of Community & Economic Development. In that case, Alito held that a provision of the Family Medical Leave Act (FMLA) entitling employees to leave when they or family members are seriously ill could not be applied against the states. Doing so, he wrote, exceeded Congress' authority under the Fourteenth Amendment.

There is every indication from Alito's record that his confirmation to the Supreme Court would tip the Court away from a balancing of powers toward undue deference to presidential and executive power. The basic civics lesson here is that there are three co-equal branches of government hat should provide checks and balances to the others.
This concept is being fundamentally rejected by this Administration, the same Administration that now has nominated a jurist to the Supreme Court who not only agrees with its philosophy, but also has been instrumental in developing this approach.

Alito on Individual and Civil Rights:

There is often considerable room to interpret Supreme Court decisions and congressional statutes, and Alito has regularly used that room as an opportunity to narrow and restrict civil rights and civil liberties protections. For example, Alito:

• Wrote a dissent in Planned Parenthood v. Casey arguing that a state's spousal notification requirement did not unduly burden a woman's right to privacy, a position later rejected by the Supreme Court;
  
• Joined a dissent arguing that a student-led prayer at a high school graduation ceremony did not violate the Establishment Clause;
  
• Wrote several dissents arguing for higher standards for plaintiffs seeking trial on their race, gender and disability discrimination claims;
  
• Dissented from a decision ruling that the strip search of a suspect's wife and ten-year-old daughter exceeded the scope of the search warrant and was therefore unconstitutional;
  
• Rejected a death row inmate's ineffective assistance of counsel claim where the trial counsel had failed to uncover substantial mitigating evidence - a decision later reversed by the Supreme Court;
  
• Dissented from an en banc ruling in a death penalty case arguing that the prosecution had unconstitutionally used its peremptory challenges to exclude all the black prospective jurors;
  
• Wrote a dissent arguing that a policy prohibiting all prisoners in long-term segregation from possessing newspapers, magazines or photographs unless they were religious or legal did not violate the First Amendment.
  

The wrap-up:

It is, of course, impossible to summarize a fifteen-year judicial career in a few bullet points or with a few cases. But it is also fair to say that these highlighted decisions illustrate a broader pattern of judicial decision-making privileging governmental power over individual rights. What is critically important to remember is that while Alito may state that he would be guided by stare decisis - the principle of following prior case law - as a Supreme Court Justice, unlike a court of appeals judge, Alito would create precedent according to his own interpretations, not be bound by it. [Ed. The very definition of an "Activist Judge"]

Recent revelations about presidential authorization of domestic spying, in defiance of the law, make it clear that the Senate cannot, and must not, approve a nominee who has little regard for the constitutional system of checks and balances. The Supreme Court is the final guardian of our liberties, and Alito has all too often taken a hostile position toward our fundamental civil liberties and civil rights.

The end (goal) of government is to protect the weakest of among us - not to pile on and crush those who stumble and fall as would a Judge like Alito. It is now high noon - time for those who may be in the numerical minority to stand up and fight the good fight against overwhelming odds. Win or lose - the battle must be waged.

Vyan