Tuesday, January 10, 2006


The Alito hearings

I don’t have TV reception, and I hadn’t made any provision to watch any of the Alito confirmation hearings. But I caught some of it today while waiting for a haircut – a real throwback to the days when barbershops were hangouts for talking community gossip and public affairs.

Two haircuts' worth of the hearings – one for the patron I had to wait behind, and mine – was about enough. First, I saw Senator Kennedy’s segment: There was very little question-asking, and the test for Alito seemed to be whether he could keep a composed face while the liberal Senator pontificated. As a short primer for viewers about how a really conservative justice could screw up the law pretty badly given the constitutional issues in the news these days, it wasn’t a total loss as public affairs viewing.

I can’t say the same thing about Senator Grassley’s litany of softball questions, which was more “constitutional law for dummies.” He gave Alito one chance after another to say things like, “No Senator, I agree that the constitution does not give judges the power to rule the entire nation by themselves.” Alito dully parroted judicial-nominee slogans -- like “judges don’t make law, legislatures make law” -- that are so oversimplified as to distort matters. But the hearings are not a job interview – they’re just a chance for the candidate to avoid imploding publicly.

Alito is not imploding at the hearings, so the real question is whether the Democrats can mount filibuster purely on the basis that this nominee would push the Court too far to the right. Whether he will vote to overturn Roe v. Wade or not – and it’s really impossible to predict that with any certainty – I think it’s clear that he’s more of a conservative hard-liner than O’Connor and so will push the Court to the right.

Alito is clearly well qualified, but that’s not the point. If qualifications were all that mattered, then the constitution would perhaps have provide for Senate “advice” only. But the constitution requires Senate “consent,” and that means the appointment process is supposed to be political. Bush has played this game the same way he has played everything else in his presidency: as though the Democratic opposition did not exist. If the Democrats can prove they exist with a filibuster, that would be great – and well justified.

You might hear some liberals lament that my argument would also justify a minority Republican Senate blocking a very liberal nominee if the Democrats someday controlled the White House and the Senate. Giving up that fantasy strikes me as a small and reasonable price to pay for blocking a judicial nominee who would uphold, among other things, the President’s power to create secret military courts to try people with illegally obtained wiretap evidence.

it's even worse than that. sen. kohl obviously is getting good questions fed to him, and pushed and pushed alito on how he would have decided bush v. gore, a non-hypothetical case that is unlikely to occur again, and so is fair game for questions. alito said he hadn't thought about it enough and refused to answer. kohl pressed, saying he imagined alito being alito, that alito must have followed it closely at the time. alito continued to refuse to answer. the interchange with sen. feingold was similarly unsatisfying. forgetting even the debate about the consent aspect of the senate's role, how can it even advise if nominees never ever ever say anything at all. sigh. but at least the wisconsin senatorial delegation did put on a good effort.
Are you really a lawyer? Pardon the sarcasm, but do you really think Sen. Teddy's usual array of straw men could offer a primer on anything, other than being a demonstration of the Senator's excessive love for Chivas Regal?

I'm 46, and within my lifetime the "politics" of supreme Court nominees didn't matter. Only qualifications did. The idea that this has always been a "political" process is laughable.

What lefties, again and again, do is act as if fairly new practices are long-standing traditions; sometimes even people who are law profs do this.
Campagna: are you really 46? You seem so much younger.

Name me one Supreme Court nomination process that was not political. Let's go back to your early years (1968-69): Warren Burger? He was one of the least qualified justices in the last 75 years, but Nixon knew he would make good on Nixon's "law and order" campaign promise. How about Gerald Ford as a Congressman, threatening to impeach the highly Justice Abe Fortas because Fortas was too liberal -- and saying that "high crimes and misdemeanors" (impeachable offenses" are "whatever Congress says they are"?

How about Roosevelt's cout packgin plan? Didn't the "politics" of the Justices matter then? How about the pro-slavery "politics" of Justices in the 1850s and 1860s -- do you think Presidents and the Senate didn't think about that?

The only occasions when Supreme Court nominations don't seem "political" is when the nominees are too middle of the road to bother -- but then, the politics occurred behind the scenes, when the President was selecting the nominee precisely to avoid a political battle. Gee whiz, you can even pick that up from The West Wing.
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