The Roberts-Alito Court
Thank you, Ted Kennedy and Ralph Neas.
Thursday, January 26, 2006 12:01 a.m. EST
With at least 52 Senators already on record in support, it's clear that--short of some smear ex machina--liberal Democrats can't stop Samuel Alito from being confirmed to a seat on the Supreme Court. So it's a good moment to consider what this says about our politics and what it means for the Court as it enters a new era.
One conclusion is that the confirmation of both Chief Justice John Roberts and Judge Alito marks the most important domestic success for President Bush since his 2003 tax cuts. These look like legacy picks. Despite the Harriet Miers misstep, Mr. Bush has now fulfilled one of his campaign promises. And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles.
In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.
The Roberts-Alito Court also represents a notable, and greatly satisfying, rebuke for the legal left and its "borking" strategy. They have long thought of the courts as their personal legislature, and they have shown they will do and say anything to keep control of it. But this time they lost, and on their own ideological terms.
Senator Chuck Schumer declared in 2001 that he wanted to turn judicial confirmations into battles over "ideology." The New York Democrat succeeded in doing so, but he ended up losing in a self-knockout. One reason Democrats couldn't defeat Chief Justice Roberts or Judge Alito, despite near party-line opposition, is that their filibuster strategy had made judges a top-line election issue in both 2002 and 2004.
The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority. The Democrats who remain in red states--five of whom are up for re-election in November--saw all this and had no appetite for a repeat in 2006. The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.
While it's impossible to know how any new Justice will vote on specific issues, every indication is that the new duo will fit somewhere along the Court's conservative-libertarian wing. With Judge Alito replacing Justice Sandra Day O'Connor, who in her later years had moved markedly left on the culture, we can anticipate more skepticism toward both racial preferences and campaign-finance restrictions on free speech.
We can also expect more respect for the free exercise of religion clause in the First Amendment, as opposed to the rigid invocation of the establishment clause's "wall" of separation between church and state. We'd also hope for greater respect for property rights, including a revisiting of last year's egregious Kelo decision, as well as a revival of the Lopez line of commerce clause cases showing more respect for federalism. Roe v. Wade may survive, or not, but we'd expect that individual states would receive more leeway to enact restrictions on abortion as per the wishes of their citizens.
This does not mean this will be a "conservative" Court, however. Four reliable liberals remain, as well as the protean Justice Anthony Kennedy, who has been making his own migration to the cultural left and the make-it-up-as-you-go jurisprudence exemplified by Lawrence v. Texas (on state laws on homosexuality) and Roper v. Simmons (on the juvenile death penalty). You can bet the press corps and liberal politicians will now apply their carrot-and-stick strategy of praise and castigation to push Justice Kennedy further to the left and retain a five-vote liberal majority. This will be especially true on the polarizing cultural disputes that are better solved democratically.
All of which means that the political battles over the Courts will continue. It is possible Mr. Bush will get another Supreme Court nomination before his term ends. Even if he doesn't, there will be many crucial places on the appellate courts to fill. There are eight appeals-court nominees awaiting action and a total of 15 vacancies, excluding Judge Alito's slot on the Third Circuit.
The White House and Senate should move with confidence and dispatch to fill these openings with judges in the Thomas-Scalia and now Roberts-Alito mold, while they still have the votes to confirm them. One thing we've surely learned from the past six months of Supreme Court debate is that elections matter to the courts as much as they do to the other two branches of government.
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