By The Political Heretic
Samuel A. Alito's confirmation to the Supreme Court regrettably is all but assured when the senate votes on his nomination early next week. Fifty-three Republicans (including three moderates) say they will vote for his nomination as will at least three Democrats. Two moderate to liberal Republicans and at least two Democrats who represent conservative swing states have yet to commit one way or the other. Senator John F. Kerry and Edward Kennedy know they do not have the votes to sustain a filibuster since even those who oppose his nomination (Ken Salazar, for instance) say they will oppose a filibuster.
Mr. Kennedy's grandstanding is particularly maddening. The senator from Massachusetts squandered his opportunity to challenge Mr. Alito about his judicial philosophy when that nominee appeared before the Senate Judiciary Committee. Mr. Kennedy repeatedly bombarded Mr. Alito about his involvement (minimal it turns out) with a racist, homophobic and sexist college organization 30 years ago and hypocritically lambasted the judge for his failure to live up to his promise to hold himself to a higher code of ethical standards and excuse himself from all court hearings concerning the Vanguard companies which held his mutual funds. Mr. Alito's name was not mentioned in the documents which the senate judiciary committee reviewed and the strategy backfired. His wife cried and Mr. Alito presented himself as the rational being that he is.
To filibuster now, after having done little of substance to draw Mr. Alito's judicial philosophy out into the open to justify the maneuver, is politically suicidal and wrong. The senators had their chance to make that case in the committee and they failed. Mr. Bush will rightly brand senate Democrats who vote for the filibuster as obstructionists and the Democrats, having failed to lay the groundwork for such a filibuster by providing a reason to oppose this nominee, will look stupid. Wrong because it lets the Democratic senators on the judiciary committee off the hook for their failure to make the case for it in the first place.
Not that I disagree in substance with the New York Times'editorial board. A filibuster could have been justified on grounds of principle had the senate Democrats made the case during the hearings. Mr. Alito's conservative views may, if buffered by a third Bush Supreme Court appointee, bring our country back to the oppressive 1950s.
In his opening statement statement to the judiciary committee, the appeals court judge gave what can only be described by those who value liberty as chilling motivation for his entrance into law - his disgust and reaction to war protests and the cultural breakdown in social mores then conducted at college. This is not a statement of a judge whose temperament will lead him to be wary of excessive war power claims made by the president nor is it a statement of a man who will look beyond the literal text of constitutional law to inquire about the higher principles for which it was designed to enforce. It was a statement coming from a man who blindly follows the literal text without the acknowledgment that the laws on the book are only as good and unbiased as the ones who pass and enforce them.
The originalist constitutional interpretation favored by the conservatives of today would not have saved African Americans from slavery (Dred Scott in fact required states to accept the decisions made by other states) or the infamous "separate but equal" decision (Plessy v. Ferguson) that protected the institution of segregation. Slavery and segregation were protected by law but would the conservative priority on social mores, law and order have saved the African American?
Would it now save the very fetal beings conservatives have grown fond of protecting? Today those who would abort their children are protected by a Supreme Court precedent which a majority has to date been unwilling to reverse but if and once it is overturned by a conservative court majority the matter will return to the states. Massachusetts, California, and New York may subordinate the fetal being's liberty interest in life to the needs of the woman who on a whim may change her mind on the desire to carry it to term. South Carolina, Kansas, North Carolina and the Dakotas may force a woman to carry her baby to term even if it all but kills her. A constitution which is designed to protect the rights of those who reside within the land for which it is sovereign must by necessity grant to the federal authorities which enforce it the right to protect those who cannot protect themselves.
Senate Democrats repeatedly and pointlessly insisted that Judge Alito say Roe was "settled law," something which he could not do without undermining his claim to be a fair and neutral judge, but they could have asked him how an overruling of Roe would affect the privacy rulings that came before it (Griswold, Eisenstadt, and Carey). Hypothetically, Roe can be distinguished from the other three cases provided that the Court relies upon the Fourteenth Amendment's Due Process and Equal Protection Clauses to strike abortion rights down as a violation on the fetal beings equal liberty interest in life.
But the more likely approach, the appeal to federalism and states' rights, could severely undermine those privacy rights decisions - decisions which Alito said he agrees with ‘in principle’. The Supreme Court nominee says he can safely commit to the rights implicated there because he believes they won't be challenged. So long as Roe and Casey remain "settled law" he is right.
A woman who can terminate her pregnancy at will most certainly can use contraception to bar conception in the first place but if the Court were to say that Roe was wrongly decided because there is no abortion right found in the Constitution the principles invoked to protect the contraceptive rights in the prior three cases would also be refuted. A conservative legislature in the midwest or south may test the Court's resolve to protect Griswold or Eisenstadt and pass a law banning couples, married or unmarried, from using contraceptive devices. And the very reasoning which Mr. Alito used to justify his silence in a re-hearing of the issues implicated in Roe would then be used to discredit his vote when it came time to decide a contraceptive rights case akin to the one publicly supported at the hearings.
Mr. Alito's justification for remaining silent on one but not the other privacy rights is itself troubling, for it had nothing to do with constitutional principles. One issue, he says, will be challenged before the Court of law while the other would not. In other words, Mr. Alito can endorse the use of constitutional principles used to protect the majority who will never have the need to appeal to them but once those same principles are invoked to protect the rights of an unpopular minority who use them in a disapproving way he must remain silent so he can appear fair and balanced should the issue come before the court. The Supreme Court nominee in effect said he values power over principle but for a man who values social order and "the law" over fairness and those things which our Constitution insists that the law protect that should not be surprising. Woe to the Democratic judiciary committeemen who failed to point that out during the hearings.
The Democratic senators could have asked him how a Supreme Court justice could theoretically distinguish between the privacy rights claim protected in Lawrence (gay sex) from those protected in Griswold, Eisenstadt, and Carey.
But no, they did not. Senator Feingold would only throw softball questions on gay rights issues that even Justice Antonin Scalia could say "yes" to and none of those would in anyway give us any clue as to how he views privacy or civil rights claims in general, or the abortion and gay privacy rights claims, specifically.
On searches and seizures the senators tried to nail him on a controversial but ultimately respectable dissenting opinion upholding a "warrant less" (I use that in quotes since there was something which indicated approval for the search); police search of a daughter residing within the home of a drug addict.
Issue after issue was pressed but the Democrats failed. I do not believe, as some editorial boards for center-left newspapers believe, that the president should have his Supreme Court nominee picked because he won.
Notwithstanding the arguments made by The Washington Postand The Philadelphia Inquirer, our constitution provides senators with an equally important role in the selection of justices and the editorial writers' respect for democratic principles, however noble it may be, cannot turn into blind obedience when a person who is selected to a position that would allow him or her to draw the lines between protected and unprotected speech; respected and disrespected privacy, and reasonable and unreasonable searches and seizures is nominated.
The senate will vote to confirm Senator Alito on Tuesday when they should be voting to reject him. The grandstanding has cost the people of this country dearly. But the Senate Democrats on the Judiciary Committee had their chance to win the public support necessary to get that "no" vote (or in the alternative a "yes" vote for a filibuster) and have failed.