Strengthening Constitutional Self-Government

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Prediction Vindicated

A number of good readers chided me for this post ten days ago in which I predicted that "The Democratic attack on Alito will get no traction, and he will end up getting confirmed readily, after lots of delays and huff-puffing. The Bork-Thomas phenomena is receding, and we are slowly returning to a more normal and sane confirmation process."

Well, today’s New York Times carries a front-page story about "glum Democrats" admitting that their strategy for blocking Bush’s judicial nominees has failed. With the likes of Biden and Kennedy saying that maybe confirmation hearings should be abandoned in favor of straight-up floor debate, I think I was right to say we are slowly returning to a more normal confirmation process, and that "Borking" is as dead as disco.

Discussions - 6 Comments

I chided you for being overly pleased about the success of evasion and apology as Conservative tactics. You still are, nothing which happened this week modifies my view one scintilla:

The only person who made a serious case for limits to the power of the courts during last week’s farce was Brownback.

Alito still had to pay lip service to bad law in the case of both Roe and Casey.

Conservatives still spent the entire week feebly pleading with the media that we are not a bunch of racists (Princeton alumni rubbish, # of cases decided in favor of minority defendants by Alito, blah blah blah).

The closest anyone got outside Brownback’s opening statement to attacking the way the judiciary has arrogated power to itself as a super- legislature was the intellectualy silly exercise of Brownback and Alito sitting there congratulating themselves on recognizing that Brown vs the Board of Education was in fact a reasonable correction of a bad supreme court precedent. Whoopee, is there anyone in the mainstream of american political life who wants to argue in favor of "seperate but equal?"

Once again we will sneak a nominee on the court when we hold the majority in the senate; we could have made the case for judicial restraint to the American people. I do not blame Alito, by focusing every abstraction brought up by showboating senators like Biden onto actual case law, I suppose he made some tacit argument for judicial restraint. It is the Republican senators’ lost opportunity, not the nominee’s. Instead of a serious philosophical fight, we heard about how dastardly it is to make nominee’s wives cry. Less theatre, more substance, please. What went on at those hearings is nothing to be proud of, even if we got what I am reasonably sure will be a good result. They sneaked the all powerful judiciary onto the american scene. We should be honest and confront this distortion of the constitution, not try to sneak it off again.

WM’s comments are right on the money.

With this exception, however: There is no need to get personal with the poster.

Methinks you guys have not absorbed the lesson that the perfect is the enemy of the good. Is there something wrong with Alito in your minds? The acute political issue is confirmation, not whether the hearings are a Socratic seminar in judicial power. And, pray tell, what will happen if, as Biden and Kennedy suggest, the hearings are abandoned in favor of floor debates? Won’t the Brownbacks of the Senate shine all the more in such a situation? Won’t Democrats fare even worse?

It looks like game, set, and match to me, unless, as I say, you have something against Alito. I’m all ears.

I would hope the former post did not appear to be personal. It was not intended that way.

There does not have to be anything wrong with Alito, Mr Hayward; my criticisms are made with the assumption that he is probably a good candidate. I believe you have misidentified "the acute political issue," which is why you think I am making "the perfect the enemy of the good." These two errors together make you think the era of Borking is over. In order, then.

We have an unelected super-legislature in Washington, the Supreme Court. The example of this unelected super-legislature is to spawn imitators in every federal appeals court, federal district court, state supreme court, and state appeals court in the land. This puts Mr Alito in perspective, does it not? He is one judge out of hundreds, and while the Supreme court sets precedent, the Supremes only set precedent through the cases they have the opportunity, time, and inclination to hear. These cases are limited in number. Our project is much larger than putting one judge, or two, or three, however good, on one court. If Alito is the next Clarence Thomas his appointment, pursued stealthily, does not change the terms of the debate. That change is what is necessary to restore the constitutional role of judges. The very fact that you ask if we know somethhing you don’t, even if you are being rhetorical, speaks to the sneakines of the whole process. After a week of hearings no one should have any questions, should they?

No one has suggested this confirmation "fight" go to floor debates, so I will not address that objection. I have suggested that the hearings themselves ought to air the real issues at stake, rather than being the phony minuet we just sat through this last week. A good hearing would involve our aspiring unelected super- legislator openly saying that Roe is bad law and explaining why. He should not stop with Roe, in my opinion. There are plenty of outrageous judicial usurpations of power and he ought to attack as many of them as he thinks will make his point. He ought to publicly pledge himself to constitutional restraint over the course of his lifetime tenure. An honest, principled attack on judicial tyranny would involve the nominee and allied senators attacking the very basis of liberal arguments about the role of the court, rather than evading questions. We do this and we win.

If the American people are given a choice between judges adhering strictly to the law as it is written and the liberal "words mean what I say they mean, nothing more, nothing less" approach, I have a good idea who will carry the day. If we can create a condition of public revulsion for judicial activism which is even faintly as powerful as Reagan’s attack on tax hikes and appeasement, we win. This is not making the perfect the enemy of the good. This is a straightforward defense of the separation of powers - which is the constitutional duty of the president and the senate. Furthermore, appeals to the public on principle are much more healthy for the Republic than Washington DC inside baseball crap like we all watched this week. Who made who cry? What sort of tension existed between the degenerate from Massachusetts and the egomaniac from Pennsylvania? Who cares? This fanboy attention to the meaningless gestures of politicians is not fitting behavior for a free people.

As to your argument that the era of Borking is over - you are interpreting the facts in the most optimistic imaginable light. The reason nations have nuclear weapons is to reduce an enemy’s options before conflict even begins. Borking is the left’s nuclear option. It demands an anodyne, uncharismatic candidate who will pay the correct obsequies to leftist pieties – or at least refuse to attack them head on. It eliminates huge swathes of conservative jurists before the hearings ever begin. The best Borking is one that never has to be launched. What Alito got was a ritual spanky at best; he would have to be a much more serious threat to merit a borking. If Bush nominated Janice Rodgers Brown, the "era of Borking is over" talk would cease abruptly... and total libertarian awesomeness would break out in the committee room. We will never win until we confront the usurpation of the courts head on. If we are afraid of a debate with mediocrities like Biden and Kennedy, when will we have the courage to do the right thing? Sorry, I cannot celebrate sneaking another guy we all hope will be conservative onto the court. In a free Republic, process and public debate are at least as important as medium term results.

Our comments here are directed to the fact that the Republican senators were defensive and far from maximizing the opportunity that these hearings provided them to speak out against judicial tyranny. The American people don’t normally pay attention to politics. This is a moment when they were perhaps paying a bit more attention. Our senators failed to maximize it.

I recognize the "good" outcome -- a probable Alito confirmation. Also have never expected a "perfect" outcome -- Alito confirmed after ripping the Democratic senators a new one. But I think the outcome could have been much better than it was -- Republican senators going after the Democrats, both on tactics and judicial philosophy, in a far more aggressive and coherent manner.

Teaching moments for the American people are few. We may not get a comparable one for a long time. And with Hillary waiting in the wings and a probable loss of Republican Senate seats in ’06, time is not necessarily on our side.

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