WONDER LAND
By DANIEL HENNINGER
Borking's End?
Alito Survives
Battle of Princeton
January 13, 2006; WSJ Page A12
The grand hulk of Ted Kennedy ranted that he wanted to subpoena the papers of former National Review publisher William Rusher to get to the bottom of Samuel Alito's membership in the Concerned Alumni of Princeton. At this moment, one sensed that perhaps at last the ghost of Robert Bork had finally been laid to rest. Borking was once a Democratic smear tactic. This week -- amid intellectually exhausted and politically befuddled Democrats -- it became a laugh track.
It is widely believed that all this started in 1987 when Sen. Kennedy raced to the Senate floor to bellow that "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, children could not be taught about evolution." But Borking began the year before, when President Reagan nominated William Rehnquist to be chief justice.
The locus of opposition turned not on his 15 years of high court rulings but on allegations he'd harassed black and Hispanic voters in the early 1960s in Phoenix. This same swamp tossed up the revelation that the deed to Justice Rehnquist's former Phoenix house, purchased in 1961, held a 1928 covenant barring its sale to non-whites. "The basic issue is his sensitivity to civil rights," said Ted Kennedy, the Democrats' ancient mariner. A Republican-controlled Senate voted to approve the Rehnquist nomination 65-33 (including 16 Democrats).
The next nominee to encounter liberalism's newest notions of constitutional law was Clarence Thomas, in 1991. Then-Judiciary Committee Chairman Joe Biden to Anita Hill: "I must ask you now to describe once again and more fully the behavior that you have alleged he engaged in while your boss." Whereupon, "the Coke can" entered the archives of advice and consent. Judge Thomas's nomination was approved 52-48 by a Democratic-controlled Senate whose Majority Leader George Mitchell, an architect of our current scorched-earth politics, currently works as a statesman.
Though forced to stare upward at his questioners for four days, Judge Alito, like John Roberts before him, has been the largest presence in the room. This hearing makes clear that those of us who opposed Harriet Miers' nomination were right. She or anyone of her inexperience would have transformed the committee Democrats into the legal heavyweights, handing down lectures on "rights" and moral punctiliousness. They would have turned Ms. Miers inside out. Instead they got a member of the Federalist Society with more than enough mental firepower.
Since 1982, the Federalist Society's main purpose has been to create robust conservative legal theories and smart judges. President Bush nominated a class of them to the appellate bench. In response the minority Democrats largely abandoned Borking in favor of hostage-taking, thus delivering yet another innovation to our politics, the judicial filibuster. This in turn led to the threat of using the "nuclear option" in an institution known to our forbearers as "the world's greatest deliberative body."
This Roman circus dissipates, however, with the arrival of Supreme Court nominations, which are held in full view of the American people. And what has been witnessed so far is first John Roberts and now Samuel Alito discussing the law, rather than Coke cans, which puts their Democratic questioners on unfamiliar ground.
It appears that the liberal legal critique of conservative jurisprudence is largely incoherent. "Out of the mainstream" is a phrase and nothing more. Interesting notions of the individual's relationship to the state surfaced in the preprinted opening statements of Sens. Kennedy and Leahy, then disappeared. Judge Alito's most thoughtful remarks on justice and the law emerged in exchanges with Sens. Grassley and Sessions. Why do the Democrats seem flat-lined? Because in the 20 years that such liberal opposition leaders as Ralph Neas and Nan Aron taught them to contest nominees with propaganda, their Senate students have largely stopped thinking about the content of the Supreme Court.
They should have kept up. Thanks in large part to a half-century of judicial decisions based on no consistent standard, constitutional law today is a dense and tangled thicket understood only by practicing specialists like Samuel Alito. No surprise, then, that when a Sen. Durbin or Feinstein recited a staff-written question on some point of law and got a careful parsing back from Judge Alito on Bray or Rybar or stare decisis, their follow-up was generally of a piece with Sen. Feinstein's after discussing the machine-gun case: "That's a difficult extrapolation for me to understand, but it's not dispositive." Joe Biden shrewdly avoided this trap by using his time for magical mystery tours through his own life.
The left-wing opposition groups are reported to be frustrated that their standard-bearers are "letting Alito off the hook." What hook? Neither Sam Alito nor John Roberts remotely represent Ted Kennedy's famous "Robert Bork's America" speech. Reasonable people can disagree on the views of these conservative jurists, but first we need reasonable people.
It was apparent on Tuesday that the Bork irregulars' long march was ending at the Battle of Princeton. Ted Kennedy tilted his full 20 minutes at the Princeton windmill, producing nothing more than a laughable spat with Arlen Specter, which ended with Sen. Kennedy weirdly admitting, "I regret I haven't been down in the gym since before Christmas."
Late in the afternoon Lindsey Graham puckishly engaged in what for all the world sounded like a, well, filibuster, whose effect was to drive Sen. Schumer's turn to the exact stroke of six, when every cable network switched to news programming. Alone now on C-SPAN, Sen. Schumer rode the thin reed of the 1985 job résumé. Going nowhere, he told an odd mother-in-law story, which Judge Alito mistook for a question: "Senator, I think -- ." Sen. Schumer cut him off: " -- Just let me move on."
After 20 years of this, it's about time.
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