Democrats can learn from Alito

By James P. Pinkerton Published:

By James P. Pinkerton

Lesson for the day: Dont take political advice from liberal law professors.

That might seem like obvious advice, especially for those seeking office in red states, but Senate Democrats seem not to have gotten the message. Now they are paying a huge price, as Samuel Alito moves toward confirmation -- and Democrats move toward marginalization.

How all this happened was revealed in a recent New York Times article headlined, Glum Democrats Cant See Halting Bush on Courts / Concede Strategy Failed. In 2001, 42 of the 50 Democrats then in the Senate -- the number is down to 45 now -- went on a retreat to hear experts and discuss ways they could fight a Bush effort to remake the judiciary. The experts were three liberal legal eagles -- Laurence Tribe of Harvard Law School, Cass Sunstein of the University of Chicago Law School and Marcia Greenberger of the National Womens Law Center in Washington -- who told the Democrats that they could oppose even nominees with strong credentials on the grounds that the White House was trying to push the courts in a conservative direction. And now thats the strategy that has failed, leaving Democrats tilting at windmills, as a rueful Tribe told the Times.

Savvy Democrats see the problem for their party. Blogger Kevin Drum, swiping not only at lefty lawyers but at the ideologically purist bloggers who helped pull the Democrats dangerously to port side, noted Sunday, Senate Dems pretty much followed the script favored by the Blogosphere. ... Abortion rights in danger? Check. Imperial presidency? Check. Concluded Drum, This was the activist case against Alito, and it failed miserably.

An additional problem Democrats face is that the media, their once-powerful allies, arent so much help anymore. The mainstream media (MSM) once provided a big boost. In 2004, Evan Thomas, assistant managing editor of Newsweek, estimated that pro-John Kerry coverage from the establishment media could be worth maybe 15 points to the Democrats November vote total.

Some might dispute Thomas estimation. But in any case now, less than two years later, its apparent that the media, overall, are changing, and the change is hurting the Democrats. Jon Stewart of Comedy Centrals hip Daily Show is no conservative, but he equal-opportunistically pounces on every available joke target. So the Senate Democrats, obviously in love with their own verbosity during the Alito confirmation hearings, were easy targets for the self-described faux newsman. Stewart showed footage of Sen. Richard Durbin (D-Ill.) suggesting that Alito bore some responsibility for the recent West Virginia mine tragedy. Way to class up the joint, snapped Stewart, to laughs.

Indeed, perhaps because of competitive pressure from the new media -- cable, talk radio, the Internet -- the MSM is changing, too. Picking up on the crescendo of criticism aimed at Sen. Joe Biden, D-Del., Newsweek gleefully quoted an anonymous Democrat as saying that Biden was a blowhard among blowhards. Under such pressure from all quarters, old and new, its little wonder the Democrats are folding their opposition to Alito. Looking ahead, the besieged and numerically diminished Democrats might reach two conclusions.

First, their long love affair with lefty law professors must come to an end. For decades, the party has let itself be led, at least perceptually, by the avant-garde ideology of such litigation-obsessed outfits as the National Organization for Women and the American Civil Liberties Union.

Second, if the Democrats really believe that President Bush and his Republicans are overreaching on judicial issues, they should let them overreach. Will the repeal of Roe v. Wade bring an anti-Republican backlash? Fine. Bring it on. Let Alito on the Supreme Court and hope that he does his worst, Roe-wise, leaving elected Republicans to deal with the ballot-box consequences.

Now theres some sound political advice for the Democrats: Skip the top-down legal elitism; try some bottom-up small d democracy instead.

Special to Newsday

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