In order to stop him, the Democrats had two options. They could
- convince a handful of Republicans to vote against him
- or they could filibuster him.
In order for either tactic to work, Alito needs to look really awful. Either moderate GOP Senators would have to believe they had more to lose politically by voting to approve him than they'd have to lose by opposing Bush and the conservative wing of their party, or they'd have to believe that Alito was extreme enough that the a filibuster was consistent with the "Gang of 14" agreement. No one has come close to doing this, not the activists who are appalled at the idea of Justice Alito and certainly not the Dems in the Senate.
Why did they fail so badly, when there are quite a few really egregiously bad decisions in his record? Why are they fucking around with this CAP nonsense when he's on record defending the strip search of a ten-year-old who wasn't named in the warrant?
My theory is that bad decisions simply aren't enough. They need a coherent narrative that would convince the media and the general public that Sam Alito will do craaaaazy shit once he's on the bench. They could never make one fly; they seemed unable to assemble one in the first place. Part of the problem was that Alito was so reticent and evasive about (among other things) his beliefs about whether abortion is a constitutional right. He didn't make it easy for them the way Bork did.
But they made it harder on themselves than it had to be. From day one, the conventional wisdom about the guy has been encapsulated in his nickname. He's "Scalito", mainly because the "Scalito" nickname is witty the first time you hear it. When you're trying to make the case that someone is so extreme that they shouldn't be sitting on the Supreme Court, you can't have his similarity to someone who's already on the bench take central place in your campaign and your thinking. I just hope the next time that the Democratic Party and the activists who are making common cause with it need to stop an appointment, they can assemble a better narrative than this.