The Alito shuffle
By Robert E. Meyer (01/18/06)
A member of the Senate Judiciary Committee, perhaps Democrat Joseph Biden, declared that the confirmation process is broken. This was said in response to the formality of the week-long interrogation process for Justice-to-be Sam Alito. In a sense, I'm inclined to agree with his assessment. However, I'm more interested in examining why the process is broken, not disputing whether it is, in fact, useless.
The real problem is that once upon a time the Senate viewed its advise and consent duties as an obligation to test for superior legal qualifications, to insure the absence of unscrupulous character defects, and to be satisfied in the general competence of the nominee. All has been given over to various litmus tests. These benchmarks concern the promise to uphold the legality of certain ideological sacred cows, which were never the products of legislation to start with.
When "advise and consent" confined itself to a serious due diligence of those functions, the hearings had legitimate meaning. Today, it is doubtful as to whether many senators make up or change their minds due to any information revealed in the hearings. Alito could have promised to uphold Roe v. Wade, and it would have made little impact on changing what has already been ordained. The only real reason to vote against Sam Alito will be a displeasure with his judicial philosophy.
A while back, the highlighted liberal talking point was that the rejection of Abe Fortas as Chief Justice in 1968, would justify the "borking" of any nominee selected by Bush. But though a left-leaning jurist, Fortas wasn't voted down merely because of his liberal judicial philosophy. He had rumors of scandal to overcome, and could not muster enough votes along party lines to succeed in winning confirmation.
Perhaps we will never go back to the collegial days when polar opposites like Ginsburg or Scalia could get almost unanimous approval. I believe this is directly related to liberals being out of the influence loop. When they ruled the roost, the courts were only one arm in the scheme of liberal hegemony. Today they have become the last chance gold.
In addition, the liberals have had a sensational track record with conservative nominations defecting to the liberal wing of the court. Never underestimate the persuasive effects of Georgetown dinner parties. It was once rumored that President Nixon asked Supreme Court nominee Harry Blackmun about the resolve of his wife--would she be swayed by political the pressures of the D.C. establishment? I don't know how he answered, but he was confirmed--the rest is history.
Alito is put before a hostile liberal wing of the Senate Judiciary Committee. He is asked questions they know he can’t answer, only to be chastised for failing to give a satisfactory response. Then of course, certain committee members dash to the media microphones and cameras. Once there, they make facial expressions and say how they are concerned about this, or worried about that. It is all a ritual to appease their radical constituencies.
Liberal Senators will wax eloquent about what a threat to the Republic Alito is. Inflammatory press releases then come out a la Kennedy’s hyperbolic rendition about Robert Bork’s American theocracy and police state. Feminist zealot group leaders tell us that if Alito is confirmed, women will die. As if women themselves have no role in the choices resulting in unwanted pregnancies. All I can ask is "who will stop this madness?"
I would ask one and only one question to any nominee to the Supreme Court of this land: "Are you going to adjudicate cases that come before you according to the principles or of "original intent," or according to some other legal philosophy?" This is the only question that really needs asking, since all other pertinent information can be gained by looking at documents and reviewing the records of the nominee. The rest of the antics are part of the three-ring side show.
Any jurist who subscribes to a judicial philosophy not patterned after "originalism," will end up violating separation of powers at some point in the process. This is because the court will be seduced into the usurpation of legislative powers. Liberals never will concern themselves with this usurpation, as long as the court continues to rule in favor of their unattainable legislative objectives.
Alito will likely survive this process I call the Alito shuffle. He may at times have been in the hot seat. But the next nominee, if Bush gets another, may need to dance on hot.
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