The Political Parties and the Courts

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.
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-This article originally appeared in The Washington Times on November 1st, 2005.

Idea Men (and Women)

DES MOINES. - What struck me most about the recent summer meeting of the nation’s governors here was the absence of the poisonous and melodramatic political rhetoric that has become an epidemic virtually every other place in America, and especially in the capital.

Not that the 30 or so governors who attended aren’t members of political parties or lack partisan instincts.

But unlike Congress, these men and women cannot depend on rhetoric or parliamentary maneuvering to do their jobs — that is, to solve the acute economic, health and social problems in their states. Gov. Mike Huckabee of Arkansas says the folks in Washington are “polarized and paralyzed.” That was the nastiest it got. Mr. Huckabee, a Republican and incoming National Governors Association chair, and Democratic Gov. Mark Warner, the outgoing NGA chair, then proceeded to exchange warm compliments. No matter that, in three years, they might be facing each other as part of the opposing tickets for the next presidential race.

I came to Des Moines to get an early look at those governors in both parties who might be candidates for president and vice president in 2008. I have written for some time now that I think the nominees in 2008 are most likely to come from the ranks of those who face daily the nuts and bolts of the problems that face America, not from the gaggle of senators who usually are the frontrunners in the earliest stages of the campaign.

Most of the frequently named hopefuls were there. Mr. Warner, Mr. Huckabee and Govs. Mitt Romney of Massachusetts, George Pataki of New York, Bill Richardson of New Mexico, Ed Rendell of Pennsylvania, Haley Barbour of Mississippi and host Gov. Tom Vilsack of Iowa. But there were also several other interesting governors here, including some female governors: Jennifer Granholm of Michigan, Kathleen Sebelius of Kansas and Ruth Ann Minner of Delaware. And then there was Gov. Brian Schweitzer of Montana.

Mr. Schweitzer is a cowboy who speaks Arabic and a soil scientist who thinks he can solve America’s energy problems without a single barrel of foreign oil. He blasts all lobbyists, defends the principle of lowering taxes and is a Democrat. Don’t try to digest all that in a few moments. We will have to come back to him in another column.

Mrs. Minner is a great grandmother who raised her three kids by herself, ran a successful business with her second husband, served four terms in the state house, three terms as a state senator, two terms as lieutenant governor and has twice been elected governor. At the NGA meeting square-table discussion on transportation, I noticed her for the first time. Mrs. Minner, 70, did not speak until Mr. Warner, in response to a presentation, said: “We all know that trucks are what are ruining our interstate highways.” Immediately, Governor Minner’s hand went up like a schoolgirl’s. Ruth Ann? Warner warily asked. She said, “I don’t want to contradict my friend Governor Warner, but I want him and everyone else here to know that trucks do not wear out our roads.” She then explained quickly, technically and lucidly just why this was so. It turned out that the business she ran with her husband had been a trucking business. The we-know-all-about-cars-and-trucks boys in the room gasped that a great-grandmother had set them straight.

It’s so far until 2008 that I won’t even try to say more than that there are governors here who bear watching. Mr. Warner is a centrist Democrat who has worked very successfully with a Republican legislature (echoes from Texas in 2000?). He is articulate without being a wonk, and was willing in his year as NGA chair to make the reform of high-school education his principle issue. It wasn’t a flashy issue, but it was something every American parent can relate to. He says “it is time we acknowledge we’re the minority party in America, and do something about it.” He went on: “Left-right politics doesn’t work any more.” He contends that the new paradigm is “future-past politics.” In order for the Democrats to win, “We have to get to the future first. We have to re-invent ourselves. We have to be entrepreneurial.” A southern Democratic governor, Mr. Warner could represent a return to the successful Clintonian center.

So could Mr. Vilsack, who has just been elected chairman of the Democratic Leadership Council, breeding ground of Bill Clinton, Joe Lieberman and Al Gore. As one component of “Minnewisowa” (the new political superstate of Minnesota, Iowa and Wisconsin), Mr. Vilsack offers Democrats a chance to solidify their support in this Midwest region, which has been up for grabs in the past several elections.
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-This article originally appeared in The Washington Times on July 28th, 2005.