Tuesday, January 10, 2006 at 11:37 AM
But trust me, these hearings will be characterized more by partisan political bloviations from senatorial inquisitors than by tortured judicial explanations from Alito. Because it is patently clear that Democrats, in particular, are more interested in colloquy with Alito that might make the evening news than in eliciting any of his reasoned, even if disagreeable, opinions.
No one doubts that Alito will be confirmed. And he probably will vote to overturn a woman’s right to an abortion. Indeed, I suspect that’s why Bush nominated him. Based on what little I know about his judicial philosophy, however, I would be inclined to vote against Alito’s nomination.Nonetheless, it is foolhardy for Democrats to demonize him for holding views that are shared by almost half of the American population. After all, one does not have to be a racist to oppose affirmative action, or a misogynist to oppose abortions or a fascist to endorse executive powers that allow the president to wiretap American citizens in the interest of national security. And, it behooves the Party’s white Brahmans to appreciate this distinction, because a vast majority of black Christian Democrats have more in common with Alito (for example, on abortion and gay rights) than they do with liberal Sen. Ted Kennedy (who has some nerve lecturing people about civil rights after referring to a black Republican female judge as a Neanderthal).
But, with his opening statement yesterday, I suspect Republican Sen. John Cornyn of Texas ruined the suspense for anyone looking for a good fight:
For starters, he laid out a masterful indictment of the arguments being proffered by Democrats on theSenate Judiciary Committee to justify their opposition to Alito. In fact, Cornyn used their own words by invoking the “Ginsburg precedent” as he admonished Alito against feeling obliged to answer any question that is similar to those Democrats admonished President Clinton’s flaming liberal nominee, Judge Ruth Bader Ginsburg, to refuse to answer at her confirmation hearings.
(Incidentally, those verboten questions ranged from any involving a hypothetical case to assess her judicial reasoning, to any involving a fact pattern in cases that might come before the court at some point in the future. And, I invite anyone who doubts the validity of this precedent to read the instructiveexposition of Judge Ginsburg’s testimony, complete with official transcripts, by Jay T. Jorgensen.)
“What I want to also make sure of is that we don’t hold you to a double standard, that we don’t expect of you answers to questions that Justice Ginsburg and others declined to answer in the interest of the independence of the judiciary and in the interests of observing the canons of judicial ethics.”
Cornyn then questioned the political integrity of Democrats on the Committee by decrying the fact that Alito will be denied a fair hearing because 5 of their 8 members have already declared that “no matter what he says [or refuses to say]” they are going to vote against him.
“We know that 22 senators, including five on this committee, voted against Chief Justice Roberts’ confirmation just a few short months ago. And my suspicion is that you do not come here with a total level playing field.
I’m reluctantly inclined to the view that you and other nominees of this president to the Supreme Court start with no more than 13 votes on this committee and only 78 votes in the full Senate, with a solid, immovable, unpersuadable block of at least 22 votes against you no matter what you say and no matter what you do.
Now, that’s unfortunate for you, but it is even worse for the Senate and its reputation as the world’s greatest deliberative body.”
Of course, any regular reader of this journal knows how much I relish upbraiding politicians for spewing moral indignation at others for things they’re guilty of doing. And, indeed, I would be all too happy to take Republicans to the woodshed if the facts were available to support such a reprimand. As things stand, however, Democrats have no moral authority to chastise Republicans in this manner because, despite the notorious liberal bona fides of the aforementioned Ruth Bader Ginsburg, Republicans had the political good sense to vote with Democrats to confirm her 96-3.
By contrast, even though Alito will probably get all 55 Republican votes, he’s unlikely to get more than the 23 out of 45 Democratic votes garnered by the supremely qualified Roberts: I expect Alito to get only between 10 and
15 Democratic votes and be confirmed to the court on 65 to 70 votes by the full Senate.
Nonetheless, instead of debasing political debate by trying to assassinate Alito’s character, Democrats should mobilize (especially pro-choice, one-issue) voters to attack the ballot box in 2008 to give another Democratic president the opportunity to do what former President Clinton did – much to the moral horror of Christian Republicans: Nominate liberal judges to ensure that his liberal views are reflected in decisions handed down by the Supreme Court! This is all Bush did in nominating Alito. And, it’s entirely consistent with his Constitutional prerogatives.
Therefore, tune-in if you dare, but the story of these hearings will be more about the rabid partisanship of Democrats than about Alito’s judicial philosophy. Although, it always makes for good television when Sen. Kennedy’s face balloons into a big red frown of moral indignation as he fulminates against the political heresies of Republican judicial nominees and their right-wing enablers.
Note: If Cornyn did not disabuse Democrats of any legal pretext for opposing Alito, then sensible Party members should at least recognise that there’s legal precedent to suspect that their political agenda in this case is also fatally flawed. Because, when President (Daddy) Bush nominated David Souter to the Supreme Court in 1990, many of these same Democrats raised friggin-hell about the prospects of blacks losing civil rights and women being forced to back alleys for abortions. As it turned out, however, Souter has been one of the most reliable votes on the Court for the protection of civil rights and a woman’s right to choose an abortion.
Therefore, it’s a wonder that more Democrats aren’t questioning why Kennedy and his chorus of naysayers are so cocksure that Alito won’t turn out to be another Souter….