The Political Spectrum

As most people know, a metrosexual is a heterosexual man who has good taste in art and music, and likes to pamper himself with nice clothes and expensive grooming. There's only one drawback: I can't stand much of the so-called common-man culture celebrated by the Right.

I fully realized I'm a conservative metrosexual -- let's call me a metrocon for short -- a few weeks ago. The Gretchen Wilson song "Redneck Woman" came on the radio. This tune, a hard-charging boogie-woogie number, is a celebration of crude behavior, a kind of red-state aria of defiance against the staid, snobby, and civilized. The woman in the song boasts about shopping at Wal-Mart, keeping the Christmas lights on the house all night long, and standing in the front yard barefoot "with a baby on my hip."

I had an immediate, visceral hatred of the song. It represented the one thing I truly cannot stand about modern conservatism: its defense of anything dumb, tacky, and second-rate, as long as it comes from "the people." The common man is deified by the right. NASCAR, an absolutely idiotic "sport" which consists, as the joke goes, of "a bunch of rednecks makin' left turns," is hailed as red state America's favorite pastime -- and ipso facto comparable to the Olympics of ancient Greece. Actually, scratch that: NASCAR is not treated as something grand and noble, which makes it all the worse. To populist conservatives, the simple fact that Bush country embraces the sport makes its aesthetic quality quite beside the point. This is the sport of people, we are told ad nauseam by folks like Laura Ingraham, Bill O'Reilly, and Sean Hannity, who "work hard, go to church, and play by the rules." They are the ones who watch the WWF -- a "sport" even apes laugh at -- and who read the Left Behind series of books, which should probably be called Theology for Dummies.

Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.

We're speaking not only to you, Judge Alito, but to the court. The court … ought
to know what the Congress thinks about making us schoolchildren or challenging
our method of reasoning. We're considering legislation which would give Congress
standing to go into the Supreme Court to uphold our cases. Right now the
[S]olicitor [G]eneral does that. He's in the executive branch. We don't want to
derogate the [S]olicitor [G]eneral in your presence, Judge Alito, but the
thinking that we've had was to speak about your decisions and the court's
decisions on the floor of the Senate. Nobody pays attention to that. Maybe we
would try to come in as amicus. Why do that? We have the power to grant
standing. We could grant standing to ourselves and come into court and fight to
uphold constitutionality.

AT THIS moment in American history, it would be hard to find a worse Supreme Court nominee than Samuel A. Alito Jr. His ideology captures everything extremist about the Bush administration. If confirmed, Alito would serve as Bush's enabler. He would give Bush effective control of all three branches of government and the hard-right long-term dominance of the high court. His confirmation or rejection will depend on the gumption of the Senate Democratic leadership and independence of a few Republicans.

Alito's apologists insist that his views from the mid-1980s, when he worked at the Reagan White House, do not reflect his current conception of the law. But in a speech to the Federalist Society in November 2000, while a sitting appellate judge, Alito claimed almost limitless powers for the presidency and criticized other courts for limiting executive power. The president has not just some executive power, he declared, but the executive power - the whole thing.

Oddly, while Alito favors an almost monarchic executive, he believes the federal government has limited powers to protect the health and safety of Americans or safeguard the environment. Alito and and his compatriots in the Federalist Society are critical of the Supreme Court's holding since 1937 that Congress, under the Constitution's commerce clause, may regulate to assure everything from a safe and healthy workplace to honest financial markets. According to University of Chicago professor Cass Sunstein and the watchdog group People for the American Way, Alito has written the largest number of dissents of any judge sitting on the conservative Third Circuit Court of Appeals, and over 90 percent of his dissents were more conservative than those of his colleagues.

With the Bush administration running roughshod over individual rights,

Alito has tended to support prosecutors and corporations

over individual citizens and employees, in cases involving civil liberties, civil rights, workplace rights, and reproductive freedom. In 1985, he wrote that he thought the Constitution ''does not protect the right to an abortion," flatly contradicting Roe v. Wade.

And with corruption scandals festering in Washington, Alito conveniently forgot his pledge to recuse himself from cases in which he had a personal financial interest.

Despite the repeated setbacks to the Bush administration and its allies and Alito's own far-right record, most observers expect him to be confirmed. Blocking Alito would take a filibuster supported by at least 41 senators. Though the Democrats have 45 senators (counting independent Bernie Sanders), the Senate Democratic leadership frets that a filibuster would divert attention from other Republican woes, might make Democrats look obstructionist, and might lead Republicans to use the so-called ''nuclear option," abolishing filibusters on judicial nominations.

Yet, in their weakened condition, it's not clear that Republicans could muster the votes to go nuclear. Moderate Senate Republicans may just welcome a chance to distance themselves from Bush's extremism -- if Democrats lead. Alito epitomizes everything dangerous about George W. Bush. Unlike Bush, he would not be gone in three years. With some leadership and profiles in courage, we may yet be spared an extremist high court.