Monday, January 09, 2006

Professor Justice: Dubya Not So Dumbya

Previously by Prof. Justice: Holiday Correctness, Terminate Tookie, Fire & Hire, Democrats' Investment in Defeat.

Note from Prof. Justice:

Since posting my previous piece, “Democrats' Investment in Defeat,” I have received some critical comments from people on and off the blog. While some of the criticism is aimed, as usual, at specific statements and arguments, most of the comments are directed at its sharp sarcastic mode. In response, I would like to clarify a few points. First, it was intended to be an emotional diatribe, not a scholarly or analytical thesis. Second, for those of you who have read my previous posts, you have undoubtedly recognized that my typical writing style employs a weighty dose of sarcasm. Such a style is not uncommon among writers, particularly in political commentaries and its purpose is to entertain readers while simultaneously illustrating a point. Having said that, I readily acknowledge that my use of sarcasm in “Democrats Investment in Defeat” was, as we say, “over the top.” There is a significant distinction between using language to label individuals and/ or groups in order to characterize and articulate a point, and mere ad hominem attacks. Unfortunately, I blurred that distinction. Don’t misunderstand me. Some of my posts will be more emotional, some will be more analytical and others will merely advance some speculative interpretation of a series of events, such as the following piece on the appointment and confirmation proceedings of Judge Samuel Alito. Regardless, I am humbled that you are reading and grateful for all your comments, regardless of whether they are intended to praise, disagree or criticize.


(All quotes attributed herein are intended to convey the sum and substance of the speaker’s statement and is not necessarily the speaker’s exact words. In all instances, however, the meaning of such statements will be unchanged.)

Something that has not attracted the same level of attention from the press, but is perhaps more intriguing than his successful navigation through Iraq, is President Bush’s brilliant orchestration of the recent Supreme Court nominees. The judiciary, more than any other entity in our system of government, exists specifically to pass judgement on the delineation right and wrong. This is why achieving a liberal majority, or at least preserving a divided Court with a fifth justice as a “moderate” (read: liberal activist who will legislate from the bench), is of paramount importance to the left. But their hope of accomplishing their objective is all but extinguished and will soon vanish for decades to come. And they know it.

Now more than ever before in our history do we need the Supreme Court to adhere to the authority granted to it in the Constitution: To serve as the supreme and final arbiter of the law. In the 1803 landmark case of Marbury vs. Madison, the Supreme Court defined the judiciary’s review power by stating that “the province and duty of the judicial department is to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each.” Nowhere does it even imply that they are permitted to make their own rule if they don’t like the ones before them. The President must choose justices who will not misuse their power by manipulating the law according to their ideology. Given what’s at stake, one has to wonder whether the Democrats would attempt to block any judge the President would nominate.

Knowing, however, that breaking a filibuster would be impossible (thanks to the “gang of fourteen,” the President skillfully selected John Roberts to replace the retiring Sandra Day O’Conner. Before the President’s press conference announcing Robert’s appointment was even finished, the left began their evaluation of Roberts. The left was furious that President Bush selected a conservative white male to replace a “moderate.” But I don’t believe that the President originally intended to appoint Roberts to fill O’Conner’s seat. The President undoubtedly expected Chief Justice Rhenquist to leave the Court first and wanted Roberts to succeed him as Chief Justice. An old fashioned conservative at the tender young age of fifty, Roberts would be appointed to steer the direction of the court for years. And best of all, Bush averted a certain bloodbath confirmation hearing had he nominated Scalia or Thomas as Chief Justice. Of course, in the end, O’Conner stepped down first, but the President didn’t change course. There was no need. If Roberts survived the confirmation hearing, then as soon as Rhenquist stepped down (or passed away as it turned out), the President would elevate him to Chief Justice. That would be impossible for the liberals to block, for a block would require a vote against Roberts. Being that they just voted for him, a vote against Roberts would seem very hypocritical (and besides, not everybody enjoys voting against things after they vote for them). This would be too difficult to justify, especially since the balance of the court would not have changed. Remember, O’Conner agreed to remain until a replacement was confirmed. There would still be only four conservatives, at most, on the Court. This is precisely what made Roberts such an attractive choice to replace Rhenquist from the very beginning. Essentially, he was Bork-proof. Plus, there was no reason to think that he wouldn’t sail though the confirmation hearing seeing as though he is clearly far brighter, sharper and more articulate than any senator.

When the president nominated Harriet Miers, it raised eyebrows on both sides. For the liberals, the chance that she would turn out to be an O’Conner was better than someone who was clearly a Scalia or Thomas. Of course, they were hardly lauding O’Conner’s “moderation” in the 2000 election aftermath initiated by Gore and the Democrats by refusing to comply with Florida Election Law (which required a recount of the entire state rather than the three counties they figured on winning). The Court decided that case with O’Conner being the swing vote as she often was. Nevertheless, with the advent of a possible “moderate” in Miers, O’Conner served their purposes and was held up as the weathervane of moderation that all other justices should aspire to. For the conservatives though, the Miers appointment burst the Bush support bubble. Conventional thought was that after all the years they had suffered and waited in agony to elect a conservative president who would appoint original intent justices and achieve a conservative majority on the Supreme court, this was the moment they had longed for. Through all the “stealth” appointments who were billed as conservative, believed to be originalists and who were easily confirmed by liberals, most ended up otherwise, e.g., Souter, Stephens, Berger, Blackmun and even O’Conner. And now, they were once again sold out by an incompetent President seemingly determined to placate the Democrats. He had already got his man in as the new Chief, so why not compromise a little. Take the path of least resistance rather than engage in a fight. Though as hard as he appeared to sell Miers to the right, the President was never able to convince the conservative faithful that she would get the job done simply because he said so.

Though Bush did make a serious tactical error by reducing Miers’ appointment to one of religious conviction, he had little choice. The seven senators, a/k/a/ “Gang of Fourteen” (seven Republicans and seven Democrats) had clearly communicated their unwillingness to do battle for the President’s nominees. He was left with no option but to resort to a compromise candidate who would pass through the left. How else do you explain the contrast between his appointment of Roberts, who was arguably the best possible person for Chief Justice, and his appointment of Miers, who has never been a judge (although throughout history, many have not)? Because the seven republican senators from the Gang of Fourteen left him without any other choice. However, the conservative base, both inside and outside the Senate, roared in opposition and begged the President not to squander their golden opportunity to return the Court to its rightful role. The president responded with Samuel Alito, another conservative white male.

Confident that his base is now behind him, the only way for the Democrats to rally a filibuster to prevent Alito from receiving a floor vote is with all seven of their maverick senators, plus a few conservatives. That is highly unlikely to happen because the principle part of the Gang of Fourteen’s compromise was that absent “extraordinary circumstances,” they will not participate in any filibuster of judicial nominees. Many of those senators have already gone on record stating that merely disagreeing with the political philosophy of a candidate does not constitute “extraordinary circumstances.” Nevertheless, many Democrat senators have been and will continue to desperately vilify and demonize Judge Alito. This is because after having gradually lost their power since 1994, when the Republicans first took control of the House of Representatives, they presently control nothing. They lost both the executive and legislative branches of government at the ballot box. Their last hope of accomplishing through the judiciary what they can’t at the ballot box is to gain control of the judiciary by blocking the confirmation of any Bush appointee. How else do you explain the hypocrisy and hysterics of their recent rhetoric?

Since Alito’s appointment, the Democrats and other leftist organizations have repeatedly attempted to paint him as a racist, bigot and sexist. Ted Kennedy implied that Alito is a racist because there are “troubling aspects of Alito’s record in regards to civil rights and his commitment to ‘equal justice under the law,’ that he “couldn’t find anything in his writings that showed he is opposed to discrimination” and that “average Americans don’t get a fair shake in his courtroom.” Evidence of this, senator? Only his job application submitted to the Reagan Administration in which he acknowledged membership in a ideological conservative organization and belonging to a club that allegedly restricted membership to females and minorities. Ted, have you forgotten that you party’s majority leader, Robert Byrd, for more than a decade was a former grand wizard of the Ku Klux Klan? Are you aware that the modern Democrat’s patriarch, FDR, appointed former Ku Klux Klan member Hugo Black to the Supreme Court? This from the same person who, during Chief Justice Roberts’ hearings, attempted to cross-examine Roberts by quoting from one of his opinions. The quote, however, was actually Roberts quoting the trial testimony of a witness. Pat Leahy wants to know whether he will “allow the government to intrude on our constitutional rights by authorizing illegal wiretapping.” That’s like asking, “If confirmed, do you intend to stop beating your wife? Chuck Schumer is demanding that Judge Alito provide his personal opinions on political issues such as abortion and civil rights and how he intends to rule on them in the future so that, “he won’t swing ‘the fulcrum of the court’ to the right by replacing Justice Sandra Day O’Connor and that he is more than just a darling of the conservatives.” Schumer justified his demand by stating that it is critical for Alito to “fully” answer all such questions because he has written extensively on these issues as a judge over the last decade and a half. But a few months ago, Schumer demanded the same from Roberts precisely because he had not written on these issues during his eighteen months as a judge. Sorry Charlie, the real reason you make this demand is because, as you said, “I have serious concerns about that record. . . . You give the impression of being a meticulous legal navigator, but, in the end, you always seem to chart a rightward course.” And you can’t stand that. Understand that no judge of even modest competence would dare issue an opinion on a case without having first established the facts. It is therefore patently incomprehensible to expect Judge Alito to state how he would rule on a case that does not exist and in the absence of any specific facts.

It is interesting that during Ruth Bader Ginsberg’s confirmation hearings, the Republicans, though completely opposed to her far left political and social views, including her openly embracing the idea that there was a constitutional right to an abortion, did not hold that position against her. Instead, they questioned her only with regard to her legal acumen and judicial temperament to serve as a Supreme Court Justice. Schumer, when confronted with this stated, “that was different.” Yeah, because a Democrat appointed her (President Clinton) and they agreed with her views. Perhaps the most honest indication of the Democrat’s motivation to block Judge Alito was House minority leader Nancy Pelosi’s statement that these confirmation hearings were of utmost significance is when she said that it wasn’t good for the country to have one party to be in control of all three branches of government.

So, does Judge Alito have the intellect necessary to bring honor and respect to the Court? Does he possess the judicial temperament necessary to make sure that the court is a body that interprets the law and doesn’t try to write the law? Listening to those he know him, the answer is most definitely. He is probably smarter than most, if not all, the senators and appears to have an unflappable demeanor. His prior judicial conduct indicates that he carefully scrutinizes all the facts and arguments before fairly rendering the best decision based on the law, not his ideology. He has received the highest rating possible as a judicial nominee from the American Bar Association.

As his confirmation seems inevitable, President Bush will have the distinction of not only appointing two new justices to the Supreme Court, one of whom serves as Chief Justice, but will have successfully solidified it as a court that will limit its power to the original intent of the Constitution and the Marbury standard for the next several generations.
Professor Justice practices Criminal Law in New York, teaches trial advocacy, and is a Professor of Business Law.
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