Alito at the Bat
WSJ.com
January 9, 2006; Page A12
Samuel Alito's Supreme Court confirmation trial finally begins today, and don't look for John Roberts redux. If you listen to the rhetoric coming from liberal Democrats in recent days, it's clear they're spoiling for a fight.
That's not to say Judge Alito's prospects for confirmation aren't good. The Senate and the media have investigated the nominee for weeks, and they've found a high degree of bipartisan praise and nothing remotely disqualifying. The Senate's senior Democrat, West Virginia's Robert Byrd, has said several times that he sees no reason for a filibuster. Other red state Democrats facing re-election this year have been either supportive or silent.
Yet that hasn't stopped the liberals who dominate the Senate Democratic caucus from trying to create political "emanations" and "penumbras" they can exploit. And since they know it will be next to impossible to beat him on credentials or judicial philosophy, the main line of attack looks to be on Judge Alito's integrity. The strategy is to sling mud in the hope that something will stick.
The groundwork was laid in two TV ads last week that painted the nominee as shifty and dishonest. Or, as Howard Dean, the chairman of the Democratic Party, put it so pleasantly on CNN yesterday, "The question I have is when he's answering the questions from Senator [Patrick] Leahy and [Arlen] Specter or others, how are they going to know he's going to tell the truth?"
Calling a federal judge a liar is no small accusation, and doing so to a Supreme Court nominee indicates how desperate the left is to defeat him. A serious press corps would also treat questions of integrity raised by the likes of Ted Kennedy and Joe Biden with skepticism, if not amusement. Especially when the accusations are so feeble.
One of the charges has to do with Judge Alito's supposed failure to disqualify himself from a case involving the Vanguard investment company that came before the Third Circuit Court of Appeals, on which he has sat since 1990. Senator Kennedy cites this as part of the nominee's "credibility" problem.
But apparently Democrats couldn't find a legal ethicist to testify that Judge Alito should have recused himself because he had an investment in a Vanguard mutual fund. This may be because no one serious believes it's a problem; a mutual fund is the kind of diversified investment that judges are supposed to select precisely to avoid conflicts of interest. The allegation is as ridiculous as saying a judge should recuse himself from hearing a case involving a bank at which he has a checking account.
So Democrats have had to settle for calling the lawyer who represented the plaintiff in the case. This plaintiff, by the way, is hardly sympathetic. She was rebuffed in the lower courts before her case reached the Third Circuit and by the Supreme Court, which refused to reverse.
Judge Alito will also be smeared with innuendo that he is a racist because of his membership more than two decades ago in a Princeton alumni group that opposed affirmative action and coeducation at his alma mater. The membership of Concerned Alumni of Princeton included its share of screwballs -- its unofficial motto, "Bring Back the Old Princeton," is the butt of jokes at class reunions today. But it's hardly fair to tag every member with the sins of orange-and-black nostalgists. In any event, Judge Alito, who was never active, joined to support the group's efforts to keep ROTC on campus.
As for judicial substance, the latest line of attack is that Judge Alito might support the "imperial presidency," whatever that is. Liberal interest groups are already portraying Judge Alito as the intellectual godfather of "illegal" wiretaps on the basis of memos he wrote while working in the Justice Department in the mid-1980s.
What really seems to alarm liberals here is that Judge Alito's writings show a consistent deference to the political branches -- both Congress and the executive. But only a short time ago, liberals were accusing the Rehnquist court of not deferring to Congress enough, especially on Commerce Clause cases. As for the executive's war powers, opponents who say Judge Alito is "extreme" have conveniently forgotten that the Justice he'd replace, Sandra Day O'Connor, found in Hamdi that a President has the right to hold American citizens as enemy combatants.
Liberals in the Felix Frankfurter tradition also once believed in judicial deference, but that was before they started losing political debates. Now they want the judiciary to serve as a kind of super-legislature substituting its own political judgments for those of elected officials. Far from being radical, Judge Alito's views would restore the Founders' view of three co-equal branches of government, not a Supreme Court of philosopher kings.
Confirmation hearings are also a form of theater, so we'd finish with a word to Republicans. We trust they won't let the Kennedy Democrats get away with the borking they clearly would like to attempt. Republicans also have a rare, high-profile chance to make the case for the Constitutional role for judges that the Founders intended. This confirmation is probably the most important thing the Senate will do this election year. Too bad it's shaping up to be more of a character attack than a debate over judicial philosophy. |
