As that great rhetoritician Thomas Paine is reported to have cautioned those who had misgivings about the revolutionary principles that had created America:
A thing moderately good is not so good as it ought to be. Moderation in temper is always a virtue; but moderation in principle is always a vice.
Those Democratic Senators still on the fence or opposed to Judge Alito’s cloture vote today would do well to heed our Founding Father’s caution about the ills of moderating one’s stated principles at 4:00 PM today, when the cloture vote on the nomination of Judge Samuel Alito to the US Supreme Court begins.
Make no mistake: today’s cloture vote is a vote about principles, not Senatorial temperament. It is a vote that will tell both sides whether Democrats are mere politicians — spineless, pandering, and unprincipled, as our enemies have charged for the last five years — or whether they are principled representatives of the masses who sent them to Washington to speak for us. Democrats who really are Democrats, who stand for liberal principles and a government that provides equality and freedom for ALL — not just for the wealthy, white and male — simply cannot justify failure to oppose cloture for temperamental reasons, such as deference to the President’s choice or the politeness of “moving on” merely because the nomination appears to be supported by the Senate majority. This is because the fight against Judge Alito is a critical fight in the larger war to ensure that the Supreme Court remains the key protector of the fundamental rights and liberties that the last 60 years of Court jurisprudence has created, for those previously left out of any meaningful vision of America.
In other words, contrary to the platitudes spoken by Democratic strategists and pundits, both in the media and in the blogosphere, who are always quick to soothe those who wish to fight with the hollow solace that “a Democrat is always better than a Republican”, it is not enough now for Democrats to continue to insist they are for all the “right things” while in the name of “cooperation” and “politeness” they continue to lay down before the immoral juggernaut of the current Republican majority in the Senate. They must instead draw a line in the sand of their principles. They must throw down the gauntlet and fight to the death for the protection of those “right things” — Democratic Party principles. Those principles have fallen, time and time again over the last 22 years since Satan sent Ronald Reagan to lead the nation, increasingly the victim of political compromise, political temperance, and political expediency. Merely because Democratic strategists and pundits have been trying to be “fair”, “compromising”, and “polite” in the name of winning majority votes in the court of popular opinion that only an idiot still believes will ever come.
Why Judge Alito is wrong for the Court at this time, and why it is NOT the duty of the Senate to appoint him despite what President Bush wants has been carefully and thoroughly written about and analyzed in every medium possible. That those arguments did not persuade the majority of gatekeepers, our Senators, to reject him merely confirms that today in the Republican-controlled federal legislature, party is the only true loyalty, not principles. Yet as Paine wrote in his Dissertation on The First Principles of Government, it was never intended that our Constitution be used to enshrine government by political party. Instead
It is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further.
That this was intended to be true within the context of Senate confirmations of Presidential nominations that have been made for the right-wing pandering reasons that are evident with Judge Alito’s nomination is indisputable. As Alexander Hamilton made clear in Federalist 76:
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.
In light of what our founding fathers have told us, it is not enough for Democratic Senators like Robert Byrd to have secured their place in history emphasizing the Senate’s duty to the beloved Constitution to fight Executive Branch excess, and fighting against the Bush Administration’s threats to Separation of Powers, while arguing that it is somehow ill-tempered or impolite to fight against Judge Alito because it is guaranteed that he will deliver yet another vote in favor of the most violative of checks and balances doctrines, substantive Unitary Executive Theory, to the High Court. The same Senator who, based on what I presume were heartfelt even if immoral and racist principles, waged the longest filibuster of the 1964 Civil Rights Act cannot now argue with a straight face that principles do not matter far more than any message of “impoliteness” or “lack of faith” that filibuster of Judge Alito may send.
It is not enough for Democratic Senators like Barbara Mikulski and Blanche Lincoln or even Republican Senators like Olympia Snowe and Susan Collins to steadfastly claim to be pro-choice women, yet refuse to draw their line in the sand on Judge Alito, when they know that the only truly guaranteed protection for an abortion right of ANY kind in America (no matter what disagreements we pro-choicers have about the scope of the right, we have NONE when its fundamental existence) flows in most states directly and ONLY from United States Supreme Court jurisprudence. And when they know with virtual certainty that both the Supreme Court and many individual states will shift hard against abortion of ANY kind being a right if Judge Alito is elevated to the highest court in the land and either undermines or outright overturns the Court’s privacy jurisprudence, including Griswold, Casey and/or Roe.
It is not enough for Senators like Daniel Akaka, Barack Obama and Ken Salazar to fight (even if rarely in direct racial terms) for or against policies that disproportionately affect their own people (i.e. those who share their minority race and/or ethnicity) who normally suffer the worst effects in the laissez-faire America that has been in gestation since Reagan Revolution and has now been born in the policies Emperor George Bush. They must also now stand and fight against the elevation of Judge Alito to the Supreme Court when his well-known legacy in the Third Circuit makes plain time and time and time again that the Courthouse doors — would be virtually welded shut against us – whether US born or immigrant, Black, Latino, or Native. When they know that the highly shaky shelter we have found over the past 60 years for our rights to do everything from work to marry as equals was built primarily on the foundation of Supreme Court jurisprudence. When they know that, our people will likely be the first and hardest to fall under the cruel scythe of the facially benign legal tyranny of a still largely racist, ethnocentric and classist (yet largely self-unaware) American majority if Judge Alito is elevated and shifts the Court’s view of what the Constitution guarantees to those who simply cannot buy their government’s loyalty.
It is definitely not enough to have a sincere desire to just “move on” even in the name of helping the truly desperate in their hour of greatest need, as Senator Mary Landrieu should know. Particularly when those most in need include the poor, people of color and women. The very same constituencies — which together make up the plain majority in Louisiana — who will lose far more long-term than they will gain short-term if Judge Alito’s elevation is permitted to shift the Court away from the populist principles historically advocated — through filibuster, no less — by one of the state’s most controversial yet loved figures, the assassinated Senator and legendary populist Huey P. Long. The Senator has a duty to ask herself plain today: what would Huey P. Long have done? I believe in Mary Landrieu’s case, both Senator Long’s history and her own before she moved into the DLC middle speak for themselves.
There is only one thing that matters today, for each of these and others wearing the label “Democrat” on the Senate floor today: standing firm for Democratic principles, the same principles our party champions to the grassroots each and every time it seeks our support at the polls. In the context of Judge Alito and what his appointment will do to the Court, there is only one vote that is consistent with these stated principles, which the primary reason that the Democratic Party has not otherwise become an utter irrelevancy to most on the left: a vote against cloture on the floor of the Senate this afternoon.
That neither the Democratic-voting public nor our Senators will relinquish the fight against Judge Alito’s confirmation based on our principles would be fully justified by America’s revolutionary tradition, even if we lose. Perhaps, especially if we lose. For, as Thomas Paine also wrote, in The Crisis No. I:
These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.
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Those words are apt now. Because we are at war, and perhaps making our meaningful Last Stand. A Last Stand being led by Senator John Kerry (a man who under other circumstances could never lead this particular Sapphire given his utter repudiation of his promise to Black voters last November, but who nonetheless gets sincere thanks from me for stepping up — for whatever reasons, selfish or not — when it seemed that no one else would) and Senator Ted Kennedy (who like his revered late brothers, John and Robert will be remembered as a true hero of the left in the fight for the Court, no matter what outcome, because of his eloquent opposition to Judge Alito for all the right reasons). A Last Stand that many, myself included, see as the last attempt to save the Last Bastion of Hope for many — the United States Supreme Court — from being lost in the larger right-wing war to take over this country. Saved from becoming the third branch of the Republican Reich (the first two arms, the Executive and Legislative, already well-seized by those who abhor most of the progress of the last 60-70 years in America whether for small-minded or outright greedy reasons). Saved for at least the next 25-30 years from an otherwise guaranteed backwards retreat from America’s judicial attempts to ensure a free and equal America, when that equality is measured by gender, race, ethnicity, disability, economic status or age.
If the finger in today’s political wind is to be believed, the outcome of today’s scheduled cloture vote is right now too close to all. That itself is a victory, when but five days ago we seemed poised to merely repeat the utter rollover that Democrats gave Justice John Roberts just three months ago. We are so close, and we know what is at stake. So, despite five days of battle blitz via fax, e-mail and telephone — we simply must keep going. Never stop. As long as we don’t stop, neither can our elected Senators. Or if they do, at least it will be clear that it is to their peril, if it isn’t clear that the nation’s peril itself is all that requires action right now.
Finally, to Democratic Senators and Republican friends who STILL just don’t get it, I’ll end by telling you plain the same thing that, purportedly, Thomas Paine also once said.
This is your Constitutional and moral duty on the Senate floor today: