I'd like to make a couple a points about Walter Shapiro's clearly obvious exasperation with the apparent inability of the Democrats of the Senate Judiciary Committee to hold nominee Samuel Alito's feet to the fire, if only at least to grill them.

On a first point, Shapiro is at pains to learn why Charles Schumer of New York spent six minutes asking a question which he knew Alito would and could skate around. I ask Shapiro what else could Schumer do. Indeed Shapiro offers no answer/alternative/suggestion as to how Schumer could have rotated or positioned Alito as a punching bag. Schumer did what he only could have done, which is to hold the Alito record up to ridicule. We all are well aware that the rabid, drooling extreme right wing is immensely pleased that Bush was given a chance to replace Miers with Alito, an action that raised all of our suspicions. The investigation into the Alito background has pretty much revealed all that we expected. And we know that Alito has been "Mirandized" by the Bush preparation team "...to say anything they want to hear and which should be said as Senate pablum, but avoid getting too talkative or expounding philosophically in ways that can be used against you."

Schumer is making the best of a bad situation. And that situation is that America is getting the government it wants and deserves. It has given majority power in both houses to the nation's Neanderthals who are setting a course for taking America back to a primeval era. Believe me, Schumer is just as exasperated as Shapiro at seeing what is happening, and he feels just as helpless. Those of us who are not members of the Sixty-Two Million Idiots Club all feel the same way.

Another point is on Alito's views on stare decisis. Shapiro talks about Alito as "...the geek who memorized every bit of case law...without developing a single opinion that would make him an intriguing dinner-party companion." Shapiro surely has to know that between Scalia and Alito, they will become the Twin Terrors of Outright, In-Your-Face Right-Wing Judicial Activism on the court. No judicial restraint from these two. Alito's first activity will be to advise legislators from the reddest of red states on how to set up a direct legislative law assault on Roe, and then have it works its way to the Court. Of course, Alito should recuse himself from such a case, but we already have evidence of his trying cases with in-your-face partiality.

No, Mr. Shapiro. Judge Alito intends to distinguish himself on the Court, and make us all wish we had Bork sitting on the bench instead (expect Assoc. Justice Alito to have Bork over for tea, by the way). Judge Alito is playing opposum for Kennedy and Schumer the way he has been instructed. He has been ordered to leave the ideology for the courtroom. When he becomes associate justice, Alito will assemble around him only the most ideological of law clerks recommended to him, whose draft base opinions are there to make sure Alito does not moderate or temper his views while he revises those opinions only to remove the most hateful and virulent statements against civil liberties.

My disagreements with Shapiro are minor in an otherwise well-analyzed, excellent essay. Shapiro catching Alito signalling his intent as a jurist by Alito's use of the word "inexorable" was quite informative.

You knew going in that the questioning would be awful; it always is -- like the White House press corps' questioning of Bush, but in a different way. The press corps mistakenly thinks that Sam-Donaldson-style confrontational questions are hard -- "Mr. President, your opponents say your Iraq policy is a total failure. How do you respond?" But such questions just invite answers that are all talking points: No, we're making good progress in Iraq, blah blah blah. With Senators, the problem is that they think long explanations and preambles make the questions harder. In fact, words are their enemy; the more verbiage, the easier it is for the nominee to confuse things and hide in the thickets. I don't know why both groups are so pathologically incapable of seeing what they're doing wrong.

Here's an example of a question I wish John Roberts had been asked, or now Alito:

"Do you believe the Constitution is in exile?"

That's it -- just eight words. Don't preface it or explain. Some viewers wouldn't get it, but a right-wing judge instantly would, and I think would have a very tough time answering. The "Constitution in exile" is a right-wing legal theory that holds that the New Deal and all it wrought was basically unconstitutional, and that the courts have therefore been misreading the Constitution for the past 70 years. If a Supreme Court nominee says, "Yes, the Constitution is in exile," then (as the Dems could point out) he's signed on to an extremist doctrine that 80% of the public would reject. But if he says "no," he repudiates his allies on the right. The right-wing blogosphere would go bananas, followed in quick succession by the Weekly Standard and that crowd; pretty soon they'd be demanding the return of Harriet Miers.

Recognizing this trap, the nominee will stumble and try to hedge, at which point the canny Senator could ask HIM to explain the theory and what he agrees or disagrees with about it. Thus: "You've heard the term, right? Does it describe ANY aspect of current reality? Was the New Deal unconstitutional? Is this even possible -- can there be a 'true' Constitution different from the one actually in force under current laws and court rulings?" These are worthy philosophical questions in their own right, they can't be evaded as "issues that might come before the court," yet the answers could be explosive -- and pointing out why would be a good way for Dems to educate the public about the Right and what it actually wants. But it won't happen, because it requires being unpredictable, which requires independent thought: plainly too much to ask of a United States Senator.