11 January 2006

Alito: Entering Day 3

A.D. Freudenheim, The Editor

As we enter the third day of Judge Samuel Alito's confirmation hearings in the U.S. Senate, the challenge for anyone concerned about Alito's Constitutional views is figuring out where to direct all the negative energy. I have an answer.

First, let's recap. Two things seem very clear at this point:

1) Judge Alito is not Judge Bork. He may hold equally radical views, but Alito is not going to give himself away in the manner Bork once did.

2) Judge Alito is smart. He knows how to handle himself in front of this Senate committee, and in front of the cameras, and he has been careful to assert an image of modesty and deliberation, while also answering questions -- such as about the importance of judicial precedent -- in ways that allow comfortable intellectual wiggle room. (Alito implied that sometimes precedents must be overturned, in order to achieve a "true" understanding of the Constitution; he cited the Brown v. Board of Education decision overturning Plessy v. Ferguson's Constitutional endorsement of racial discrimination. It makes the point about judicial precedent more difficult to argue.)

That the hearings have not shown themselves to be the spectacle that surrounded the Bork or Thomas hearings does not mean that we shouldn't watch -- or that they should not take place. Despite the back-slapping and grandstanding of some Republican Senators, these hearings are an important component of our democratic and political process, and Senators on both sides of the aisle should take this opportunity to grill -- yes, grill; press as hard as they can -- on Judge Alito's views on issues that the Senators consider important to themselves and their constituencies.

BUT, Senators of both parties should also quit grumbling in public about these proceedings and about Judge Alito. The Republicans know perfectly well that this "advise and consent" role is critical, since they took up the aggressor mantle themselves during hearings under the Clinton administration. For the GOP Senators to pass on the opportunity to assert their Constitutionally-appointed position in this case is shameful. Surely, not every position Judge Alito has taken is one the Republicans support. And quit complaining about the very reasonable questions asked by your Democratic colleagues; it adds nothing to the public conversation about Alito's qualifications.

The "quit grumbling" message is even more important for the Democrats. Face it, Senators: unless someone comes up with a Bork-style smoking gun, Judge Alito will be voted onto the Supreme Court by the Senate. To waste your committee time -- and your national airtime -- stating over and over and over again that Judge Alito is replacing the "moderate" Justice Sandra Day O'Connor (a recent Democratic hero) is pointless. We all know that the Supreme Court doesn't work that way; there are no assigned seats, no seats designated for particular types of believers. Asserting that point ad nauseum is not going to prevent Alito's confirmation, nor will it push him towards moderation once on the Court.

Instead, for Democrats, the best way to fight the impact and influence of future Supreme Court Justice Alito is through ideas and effective policies. These are things that are sadly lacking. Instead of harping on and on about the same set of issues -- abortion, affirmative action -- that many Americans clearly have mixed feelings about, why not evolve those positions to meet more contemporary American needs and realities. The U.S. of 2006 is not the U.S. of 1946; the role of women and minorities is different, and better; different and better does not mean we should be complacent, but it may mean that a change in political philosophy is necessary. The same is true for Social Security, health care, domestic security, and the Iraq war: new thinking is needed on all of these issues, issues in which the Republican-lead Congress, and a Republican President, have very clearly failed. Yet the Democrats have failed, too, missing every opportunity to provide any governance ideas that move away from the ground established under the Roosevelt or Johnson administrations and towards the 21st Century.

Based on what I have read about Judge Samuel Alito, and his answers during these hearings thus far, I have strong concerns. But as I think every Senator on the Judiciary committee has noted, the Supreme Court is only one of three branches of American government. It's time for Congress to step up, and the time is long overdue for the Democrats to lead that process.


Blogger Subcomandante Bob said...

More on the Alito hearings at National Nitwit, America's number one source for disinformation.

12:31 PM  

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