The decision about who would be named to replace retiring or deceased justices on the U.S. Supreme Court was made on Nov. 2, 2004. Prior to that, in the national elections, the candidates and political parties had been quite specific about what kind of justices they would choose if they were elected. George W. Bush went out of his way to do this, and Democrats reinforced public awareness of this by warning against this outcome. Nevertheless, a majority of voters re-elected President Bush and gave him an increased majority in the Senate, which must approve his judicial choices.
The advise-and-consent clause of the Constitution was clearly intended to be a check or review of presidential nominations. The standard is not only whether there is agreement about a particular nominee’s philosophy, but whether a nominee meets the qualifications of office.
It is true that the direction of Supreme Court decisions is now at a turning point. By returning a conservative president and a Republican Senate repeatedly to office, the voters have signaled they want and approve of this change. Public-opinion polls, for whatever they are worth, strongly reinforce this conclusion when questions about critical judicial decisions are posed to voters.
As a political centrist, I likely would not have selected Judge Samuel Alito for the court vacancy if I were president. Almost certainly, no Democratic president would have chosen him. But the choice is not mine, nor is it the Democrats’ to make. The initial negative wave from liberal interest groups, and from the most liberal senators, is predictable, but it is not necessarily helpful to their cause.
A similar campaign was intended to thwart the confirmation of now-Chief Justice John Roberts only months ago, but Justice Roberts’ character and distinction as a legal mind overwhelmed this intention, and he was easily confirmed. Judge Alito’s legal track record is larger than was Justice Roberts’, and thus more open to controversy, but barring the very unlikely revelation of some flaw in Judge Alito’s public life, his apparent intellectual distinction, character, demeanor and grasp of the law should make his confirmation a formality.
Questions about his legal philosophy may be asked. Questions about how he would decide on specific issues and cases will be appropriately rebuffed, as they have been by all recent nominees to the court made by presidents of both parties. I do not question that these specific issues and cases are what is on the mind of both sides, but I remind that this was already settled in the national election of 2004. Sen. Joseph Biden, a senior Democrat on the Judiciary Committee and a likely candidate for president in 2008, may raise the issue of “privacy,” and discuss it so that voters will understand how he would choose justices if he were to become president, but Mr. Alito’s views on specific subjects are not grounds for rejection by the Senate, nor for an attempt to filibuster his nomination by a minority party.
Sens. Charles Schumer, Ted Kennedy and others did suggest, before the announcement of Judge Alito’s nomination, that Mr. Bush should nominate a “mainstream, consensus” justice. This was mere rhetoric that simply covered up that they were opposed to any candidate who did not fit their judicial and political philosophy. Some senators voted against the nomination of Chief Justice Roberts. A likely larger number will vote against Judge Alito. The confirmation process is necessary, and votes against a nominee are the right of any senator, but in the hermetic Senate, there needs to be a reminder that voters are watching and making judgments of their own about senators and their political parties.
The glib, predictable and partisan criticisms of the nomination of Judge Alito made so far by the likes of Mr. Schumer and interest groups which do not represent majority opinion in the country, do not, I suspect, help the Democrats nor these interest groups to regain the presidency and control of the Senate in 2006 and beyond. The president stumbled in his choice of Harriet Miers, and was forced to replace her nomination by those who had the appropriate right to do so, the base of his own party. I may not always agree with these folks, but they supplied the votes to elect the president and his majority of the Senate.
Job one for the Democrats today is to recover the majority of voters. The spectacle of an ugly fight over Judge Alito’s nomination does not, in my opinion, work to that goal. Today, the conventional wisdom in the media is that such a titanic battle looms ahead. It may, but I predict and hope that cooler heads will assert themselves after the current spate of rhetoric and venom is exhausted, and those who rightfully would lead the Democratic Party in 2006 and 2008 will turn their attention to those issues which the voters have not yet decided.
-This article originally appeared in The Washington Times on November 1st, 2005.