"Sparks Fly, Tears Fall"

Martha Alito is probably a very nice person. She looks like your best friend's mom. She married a nebbishy guy who opted for a career in the federal government and the humble income that comes with it. For the life of their marriage, they've probably led a quiet, happy life, not having to confront scrutiny, the public controversy limited to fallout from things like obscure utterances on sentencing reform that her husband might have uttered at a professional conference.

She's not Hillary Clinton or Laura Bush. She didn't sign up for this kind of drama.

So when she started crying this afternoon, it was sincere, and moving. I felt sorry for her. That the tears came from the kind words of Lindsay Graham -- who may have priorities that would reassure the worst social Darwinist, but manages to articulate them with an endearing style worthy of Mr. Smith and Opie, and who I like in spite of myself -- made it seem more poignant.

And with that, American government and media careened to another nadir moment, one in what now feels like an unendurable cycle of absurdities and half-asseries. The front page of the Fox News website featured the Knotts Landingesque headline, "Sparks Fly, Tears Fall." CNN prominently featured a link to Mrs. Alito's teary but somehow dignified moment. NPR's post-questioning analysis highlighted the episode.

And I can't bring myself to watch the cable news talk shows.

Around the time that this happened, the Democrats' performance was varying between mediocre and embarrassing. This afternoon, I listened to a pathetic episode in which one of the Democrats (I forget who) tried to make Alito look like a proponent of heavy-handed law enforcement, when, in reality, the issue in the case turned on a highly technical question of official immunity, and whether such concerns are issues of law or issues of fact. Alito understood this; his questioner did not appear to.

Through two days of questioning, Alito has seemed like the smartest guy in the class, and the Democrats have looked like lawyers who showed up to court underprepared. With his Republican allies fleeing from jurisprudential substance like an unloved virgin running from a frat party, Alito has come across as the only person in the room who knows what he's talking about.

This has all turned into a shameful exercise in foolishness and grandstanding, nearly as lacking in respect for the rule of law as the president's illegal wiretaps. The Democrats simply do not appear to be taking this hearing seriously. They're either underprepared, or unwilling to engage in the kind of rigorous technicalities needed to refute Alito's mastery of the issues.

For a group of people who emphasize the Senate's role in advice and consent, they've treated their constitutional obligations like an appearance on a Sunday talk show. Alito's role in a racist Princeton alumni club and his participation in a Vanguard case are important issues worthy of questioning, but if that's the best we have, we are sorely fucked. Unable to clearly articulate the underlying legal issues confronting the Court -- and clearly incapable of effectively refuting Alito's knowledge of difficult legal doctrines -- the Democratic senators have missed an opportunity to engage in an important public debate about the trajectory of American law.

Because even if Alito had stonewalled them -- as he would have -- they would have built a record of their arguments, and made a case to educate the public.

When the flashpoint of the hearings bccame Martha Alito's tears, it was a fitting denouement to a set of hearings that was already descending into bread and circus. The tone of Dick Durbin's nearly apologetic questioning was an education into the Democrats' failures of the past decade. Consider this segue into questions about a law review note Alito authored as a student:

Interesting that when you -- I couldn't tell you what in the heck I ever wrote in law school about anything.

But in your second year in law school you wrote a paper, I take it, some research paper which you had to tell us about here relative to the issue of religion and then, in the '85 memo, raised the question about the Warren court on the establishment clause.

What was it that the Warren court decided on the establishment clause that troubled you, if you remember?

I somehow missed this gem:

DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?

ALITO: I am to some degree, yes.

DURBIN: I guess most people in New Jersey would be. They should be.

ALITO: There was a movement some time ago -- we don't have an official state song and there was a movement to make "Born to Run" our official state song. But it didn't quite make it.

DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.

They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.

Way to put him on the spot. Dick.

While it was poignant to see Martha Alito cry, it's a shame that the press won't be there to cover the tears from the following people:

1. The sister of a wrongly executed convict who could not be exonerated because the judiciary adopted an effed-up standard for reviewing DNA evidence on habeas petitions;
2. The woman in Nebraska who was forced to have a baby because the Supreme Court did not find state restrictions severe enough to warrant harsher scrutiny;
3. The small-town Jewish kid who got bullied for opting out of a state-funded Jesus class;
4. The gay dudes who moved out of Ohio because the courts did not strike a narrow law permitting employment discrimination in public schools based on sexual preference;
5. The black voters in Alabama who lose control of their Congressional district because of a new interpretation of technicalities in the Voting Rights Act.
   

Because the Democrats' weakness, the Republican aversion to issues, and the media preoccupation with personality has evaded one underlying proposition -- that Sam Alito remains a very scary guy, no matter how much his wife loves him.

These have not been two good days.