Wednesday, January 25, 2006

The Politicizing of a Pick

Shame, shame, shame. [rant]

Samuel Alito's confirmation is likely to come very close to being decided on party grounds. This is simply pathetic. I'm not interested in going on and on about this, so I'll state it simply:

The nominees for Supreme Court Justice are not even supposed to be asked what their opinions are. This turned into the "Ginsburg no response" attitude for a while; and this year, the Democrats argued that even this should not be done. That's simply stupid. There is a reason Justice Ginsburg, an outspoken former ACLU head who openly advocated her pro-Roe views, passed 96-3. Justice Breyer passed 87-9. Why? Because they were qualified.

The President of the United States is the one who chooses Supreme Court nominees. He is supposed to choose qualified judges. They can be as conservative or liberal as he would like - as long as they are qualified. [edit] Let me repeat that: They can be as conservative or liberal as he would like - as long as they are qualified. [/edit] Disagreeing with any previous decision of the Court does not deem someone "unqualified"; neither does having a viewpoint on anything. Many polls asked US citizens whether they think Alito should be confirmed if he would overturn Roe vs. Wade, and 2/3 said "No". Apparently, most US citizens have no clue what matters in deciding to confirm a Supreme Court Judge. The American Bar Association gave him its highest rating - do most people even know that?

A number of other bloggers* pointed out the stupidity of Dianne Feinstein, who stated "he's qualified" and in the next breath said she would "vote against him", because she's not sure what he'll rule in certain cases. That's just idiotic. I have yet to hear a single reason why Judge Samuel Alito is "not qualified" that didn't include some future cases that someone is afraid he'll rule a certain way on. Pathetic.

Shame, shame, shame. [/rant]

EDIT: Judeopundit sent me the Feinstein link: Thanks, Yitzchak!

* If y'all [JudeoPundit? Nephtuli? CWY? Others?] e-mail me or leave a comment, I'll put in the links - I'm just not interested in perusing archives now...

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  1. The President of the United States is the one who chooses Supreme Court nominees. He is supposed to choose qualified judges. They can be as conservative or liberal as he would like - as long as they are qualified.

    Is this just your opinion? On what do you base it?

    According to the Constitution, the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consults, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

    I don't see where it says that the Senate can't take make their decisions based on the political beliefs of the nominee.

    Moreover, one could argue that being on the far end of the political spectrum does render a candidate unqualified since a Judge is supposed to be impartial. A man can know every case by heart but still rule in favor of the president's position (for example) in every case, regardless of merit. I argue that such a candidate would be unqualified.

  2. First, I don't necessarily agree that being on the "far end" would be a problem, but I do hear the point.

    But I do believe that in the rules for the nomination process it says specifically that the views of justices should not be taken into account. I can't find the link, however. (I know, helpful.) Anybody else know where it says this?

  3. Jewish Atheist, it's not a matter of can't, it's a matter of shouldn't. Just because a politician thinks a law should be one way doesn't make it so, if it simply doesn't exist. That is why politicians aren't judges. This is where checks and balances come in. There is nothing "extreme" with a lawyer or judge saying that no-where in the Constitution does it give a person a right to privacy or a right to abortion. However, by then saying that because precedent has been established (stare decisis), and in that, they will not or feel that the law does not allow for them to over-turn a ruling no matter that view makes a judge extremely qualified even a politician disagrees with their views.

    We've been seeing too many judge activists preaching from the bench or becoming legislators when that is not what the judge is supposed to be doing. A perfect example would be what's happening in Virginia with a judge there giving a convicted rapist (a man who raped a 12 year old girl over a period of four years, when she was just SIX years old) only 60 days in prison. Alito's record, hundreds of rulings and thousands of briefs, has consistently shown that he is not an activist nor is he a legislator. He interprets the law as the law. Previous "qualified" Justices have not proven to do that, like Justice Ginsburg.

    The fact is that the hearings are no longer about discovering the qualifications of a prospective Justice. The Senators have made up their minds before the hearings start, and some even before they know anything about the guy. They've admitted this. All these hearings are about are sound stages and podiums for Senators to get their political opinions, beafs, criticisms of the administration, etc "on the record". Look at the time sheets of how long a given Senator speaks during their question turns in contrast to how long the candidate gets to talk, how many questions they ask during a given period of time, etc. For instance, Senator Biden (I believe or one of the other Democratic Senators) pontificated a 15 minute "opening statement" during one of his 20 minute questioning statements.

    Bsaically, the federalist papers and other documents down the line (I'll look it up) state that the Senators have the right to know a candidate's judicial philosophy. BUT, his political views are not supposed to come into play on the very simple fact that he is NOT a politician. He's a judge. He doesn't run for his position. Obviously, his life term is a double edged sword. It was set up precisely so politics doesn't come into play, and a given judge resides during many Presidents, many of whom will not be on the same political plain as them. On the other hand, it gives rise for complacency and the risk of a Judge not "moving with the times". Of course, I don't really agree with that since I'm more a strict constructionist than a believer in the saluablity of the Constitution.

    Sorry for the long comment, Ez, but I'm ticked off about this whole thing also. On a side note, I wanted to ask you about how you did certain things to improve your blog. Should I ask that here or e-mail you? Thanks.

  4. OC - I actually enjoy long comments. Very well said. I have to run, more to say...

    E-mail me about the blog touchups, it's easier for me to respond that way.

  5. If Supreme Court appointments aren't supposed to be political or partisan, then why does the president (a partisan politician) have the power to appoint them? Why isn't it a civil service position?

  6. What do you mean? The voters appoint the President, and his choices are meant to reflect the views of the people. The Senators ensure that those choices are qualified - they are not meant to hold the country in check.

  7. The candidates, themselves, are supposed to be non-political. It has nothing to do with how where the politics of the Presidents lays. He is ensured with the power of picking a candidate that he views will enforce the Constitution in the best way that he sees fit. The Senate is supposed to check that by deciding whether his qualifications are not in accordance with the necessities of a Supreme Court Justice and whether he is a purely political pick, as was seen with Harriet Miers (who many people believe wouldn't have even made it out of Committee discussions to even make it to hearings). And, the most important fact of all is that the president does NOT APPPOINT supreme court nominees. He NOMINATES them. There is a huge difference between the two, one in which many people, like you, get confused about.

  8. Couldn't agree more. The Dems, especially Chippaquiddick Kennedy, were both theatrical and disgusting.

  9. Actually I really have no problem with senators voting against a candidate based on ideology. My problem is when they pretend his unqualified by making up scandals and when that fails making up positions he holds. Maybe I haven't been following it this story so closely but why is every Democrat (sans Nelson) so sure he'll defer to the President on every situation? These people would have said the same thing about Scalia, and well, they would have been dead wrong.

  10. OC - well said again. (In the future, please clarify who you're directing the comment at, if you're going to use pronouns like "you" - I got confused for a sec...)

    Jak - True. The ones on Day 3 I hear were better, but nobody was listening by then.

    Nephtuli - Political ideology or judicial? And they're not "sure" = they're arguing that because he "might", that's enough of a "concern".

  11. This comment has been removed by a blog administrator.

  12. As a Democrat, I'm in pain watching all this unfold. It's simply a losing battle, but one that has to be fought. Someone like Samuel Alito was bound to be a Supreme Court nominee when John Kerry lost the 2004 election.

    The guy is going to be confirmed. That means a number of things, INCLUDING that liberals such as my Senator, Ted Kennedy, can feel free to voice their concerns.

    Conservatives wailing about how "Chappaquiddick Kennedy" is hypocritical are essentially sore winners and really not giving Kennedy a fair shake. He has been lamblasted for decades for Chappaquiddick. Perhaps it is fair, but I don't think so. He was convicted of leaving the scene of an accident, nothing more. Yet, I have heard more ridiculous comments out there about him being a murderer and without integrity, that it is leaving a terrible taste in my mouth.

    As for voting on ideology versus credentials... well, as I said: losing battle. Alito will be confirmed, so a "liberal lion" like Kennedy is going to stand up for what he believes in and say, "I stand for liberalism and Alito doesn't. Therefore I vote against him." That seems simple and legitimate to me. If you disagree with Kennedy's liberal beliefs, as I suspect the people who attack his integrity are REALLY doing (and would probably not EVER say that if they spent an evening eating dinner with the man), then that is fine. You already won this battle in the presidential and congressional elections.

    No need to kick us, and the second-longest serving Senator while we're down...

  13. Croaky, the only one that's whining is the Demorats, and you seem to be falling into line. Actually, Kennedy is supposed to vote for a man that is qualified to uphold the law and the Constitution of the United States, not a man that agrees with his political views. The fact is that Alito is the most qualified Supreme Court candidate to be presented in more than 200 years.

    And, Kennedy doesn't eat his dinner, he drinks it. The man is 30 years past his prime as most people on the Hill have been increasingly saying. Have YOU ever eaten a meal with him? Listen, bottom line is that Kennedy is NOT the Demoratic Senator you should be defending. Pick another guy. There are good ones.

  14. Jewish Atheist's quote from the Constitution sums up all the rules. There are no others.

    It is clear that the President can nominate anyone he wants -- he doesn't even have to be an attorney!

    And it is clear that any Senator can vote against any nominee for any reason. About 20% of Supreme Court nominees have been voted down over all of US history.

    And we forget who started the precedent of opposing judicial nominations on the basis of ideology: The conservatives who opposed Thurgood Marshall and Abe Fortas in the 1960s.

  15. Olah,

    First, I have never eaten a meal with Senator Kennedy nor even met him. That will change tomorrow, however, as he is coming to my office for lunch. Seriously.

    Second, Kennedy's job is not to "rubber stamp" a man with excellent legal credentials. Understand what Kennedy is railing against:

    "But in a speech Judge Alito gave in 2000 to the Federalist Society, he stated that he believed that "the theory of the unitary executive best captures the meaning of the Constitution's text and structure." Under this radical view, all currently independent agencies would be subject to the President's control. This would destroy the independence of agencies like the Federal Election Commission, the Securities and Exchange Commission, the Consumer Product Safety Commission, and the Federal Reserve Board.

    He strongly criticized the Supreme Court's ruling rejecting the theory of the unitary executive, and outlined a strategy for bypassing it." ~ Senator Edward Kennedy

    Understand now? Don't write this off as "politics." It IS politics, but that doesn't make it illegitmate fluff. Samuel Alito will severely alter this nation as a Supreme Court justice, and not in a good way... he will break down the checks and balances of this nation.

    Calling this man a "whiny liberal who drinks his meals" is an easy way out of ignoring the real issue at stake. Please stop trying to attack the messenger and focus on the important aspects.

  16. Charliehall,

    Yes, members of the Supreme Court are appointed by the President with the advice and consent of the Senate. Very good. So the president can appoint anyone he wants. Does that mean he should? Would you be happy about him appointing Peyton Manning? Because Indy's Choking Quarterback probably has a more legitimate understanding of the system of checks and balances in the United States than Samuel Alito does.

    Senators can advise and give their consent in any way they see fit. Their larger responsibility is to their constituents and Senator Kennedy is doing a fantastic job of keeping my home state in mind.

  17. Charlie & Croaky, I do believe you're incorrect. I wish I could find it, but in the rules of the nomination process somewhere it states that a judge cannot be asked his views. ARGH. I knew I should have bookmarked that.

  18. Ezzie,

    You could be absolutely right that Kennedy can't ask him his views. I am not sure of the nomination rules outside of the Constitution. However, Alito is on record as being a proponent of this unitary executive theory, which is very, very scary.

  19. Do you have a link, and/or full quote of that?

    I also don't quite understand exactly what that means, and how wrong that may or may not be. So, you may be right as well - however, that's not the argument I've heard from any Democrat, so I still feel he should be confirmed.

  20. Charliehall,

    C'mon, who are you kidding? The fight against Marshall's confirmation was spearheaded by none other than Democratic Senator (and former kkk member) Robert Byrd. Check your history!

  21. Ezzie,

    I can't find the text, but the reference is to a speech in November of 2000 that Alito gave to the Federalist Society. Given his way, he will effectively give control of all three branches to the executive.

    Selected quotes via other articles:

    The Constitution "makes the president the head of the executive branch, but it does more than that," Judge Alito said in a speech to the Federalist Society at Washington's Mayflower Hotel. "The president has not just some executive powers, but the executive power -- the whole thing."

    Judge Alito was describing the theory of the "unitary executive," an expansive view of presidential powers that he and his colleagues set forth while working in the Office of Legal Counsel of the Reagan Justice Department. Although the Supreme Court has not always agreed, he said in his speech, "I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure."

    Judge Alito "auditioned" for appointment with a speech before the conservative Federalist Society 10 days after the 2000 election.

    "That audition before the Federalist Society appeared to work," Mr. Leahy added, "reminding the new president that they had a known quantity in Samuel Alito. It led to a White House interview in connection with a possible future Supreme Court vacancy shortly thereafter in 2001."

    "The timing of the speech to the Federalist Society may be significant," Mr. Kennedy told an audience at the Center for American Progress, a liberal group. "In November 2000, the Florida recount was on, and the right wing was salivating over the prospect that George Bush would prevail in that close election. Judge Alito may well have been submitting his application for a Supreme Court nomination."

    [1], [2], [3], [4], [5]

  22. Again, though, this is Kennedy theorizing (in retrospect) about what Alito said. But the more I read about this, the less worried I am: Alito seems to be in favor of a unitary executive - of the executive branch of government. But that makes sense: The President is 1/3 of the government, on his own. His executive powers should not be checked by the judiciary or the legislatures - much as he can't check theirs - beyond whatever checks are already built in.

  23. Whoa, Ezzie. We fought a revolution against a King to set up this type of system of government. Checks and balances are what has made this country's government so successful over other forms. You don't just throw that all away because you happen to agree with the current President's policies.

    We're about to have a new monarch... ironically name King George.

  24. You misunderstood me: I'm saying that no "extra" checks and balances should be added. Do you seriously think that this country is on the way to an unchecked President? That's where the left has 'gone over the edge' - they've switched from cautious to outrageous. Read the last few days of BOTW - he has some great stuff on this, says it better than I can.

  25. 'The fight against Marshall's confirmation was spearheaded by none other than Democratic Senator (and former kkk member) Robert Byrd.'

    You just proved my point. He also filibustered against the 1964 Civil Rights Act. Anyone who calls Sen. Byrd a liberal is smoking something.

  26. 'Do you seriously think that this country is on the way to an unchecked President?'


    1) The Bush administration consistently pushes the margin of legal authority.

    2) The Republican congress has no interest in oversight.

    3) The courts are now getting stacked with Republican appointees who tend to share Bush's view of executive power.

    Of course, the real beneficiary will be some future Democratic president who will take advantage of all the increased executive power. I just hope that president is favorable to Jewish interests. Maybe he/she will be a Jew!

    Something similar happened in France. De Gaulle designed the Fifth Republic so that its President would be even more powerful than the US President, with few checks on his power. The major beneficiary turned out to be his opponent in the 1965 presidential election there, Francois Mitterand.

  27. Charlie:

    1) is a biased approach; the right would say that he's using powers already there, the left accuse him of 'pushing' the boundaries. Nothing he has done is beyond that of what former Presidents have done. It's a ridiculous assertion to say that the President is trying to slowly rid the country of civil liberties - the left is just taking every action and fitting it neatly into a box.

    2) Most Republicans are very interested in oversight: That doesn't translate into limiting the powers of the President, however.

    3) ...which is fine. I trust those judges to properly determine how extensive the Presidential powers are - and where they end. It's much like the 6th Circuit's ruling on seperation of church and state - in addition to noting that such a thing does not exist, it noted exactly what is needed to not fall under the Establishment Clause. I trust this Court to do the same if/when a case about Presidential power comes to the Court. That it doesn't limit it to the extent liberals may want is not a bad thing.

    4) What you note about Democrats is yet another reason such assertions are misguided. Why would the Republicans give the President the ability to have unchecked powers!? While they have firms holds on both Houses, the next President could easily be a Democrat - a bad series of news and a weak Republican candidate and it's over. You'd have to assume that Bush is smart enough to have orchestrated all this over the last 4 years, AND be stupid enough to not recognize the likelihood of this. That's just dumb.

  28. 'Nothing he has done is beyond that of what former Presidents have done'

    Other than during wartime, when did a President order people held without even the possibility of trial. And other than Richard Nixon, who ever ordered warrantless searches except in wartime? People on all sides of the political spectrum agreed that Nixon had crossed the line.

    The irony is that had Bush asked for specific authority to order warrantless searches, he probably would have gotten it easily. And if he didn't want to ask because he wanted to keep it all a secret, he is a fool because everybody knows that it is impossible to keep anything in Washington a secret for very long.

    'Most Republicans are very interested in oversight'

    Please show some specific examples of congressional oversight during the first term of the Bush administration.

    'noting that such a thing does not exist'

    That is not what they said. The court said, "The First Amendment does not demand a wall of separation between church and state." They did not deny that church and state are indeed separate. This is kind of like the shul arguments of the height of the mechitzah. In any case, that is not consistent with Thomas Jefferson's original intent. He described the first amendment as "that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State."

    Now you will rightly say that the Establishment Clause was written by Madison, not Jefferson. But you will not find anything in Madision's writings that suggest he had anything other than an expansive view of the clause, even though he did not use the term "wall". He did use the term separation and he meant it.

    And both Jefferson and Madison were equally opposed to state governments giving any support for religion. Among the things they opposed were teaching theology at public universities, government-paid chaplaincies, and government officials proclaiming days of public prayer. Today the ACLU doesn't even go so far!

    Conservatives today often look for the original intent of the writers of the Constitution. If so, they should accept that Madison and Jefferson meant what they said and wrote and stop trying to get government to provide support for religion.

  29. Other than during wartime, when did a President order people held without even the possibility of trial. And other than Richard Nixon, who ever ordered warrantless searches except in wartime?

    But this IS a war! [And I'm not referring to the silly declaration.] More so than in any conventional war, the typical standards we have must be changed. To understand otherwise is not looking at the big picture.

    The irony is that had Bush asked for specific authority to order warrantless searches, he probably would have gotten it easily.

    But that's the point. He had no reason to ask, because he was under the understanding that he was already able to.

    And if he didn't want to ask because he wanted to keep it all a secret, he is a fool because everybody knows that it is impossible to keep anything in Washington a secret for very long.

    I'm not sure how you mean this: If you mean it as an effective terror tool, it was in fact kept secret for a few years. I could go on a rant about journalists using self-discretion here, but that's an entirely seperate category. If you mean it as a secret to hide because it was "wrong", that makes almost no sense: The Times and others were aware of this pretty quickly.

    That is not what they said. The court said, "The First Amendment does not demand a wall of separation between church and state." They did not deny that church and state are indeed separate.

    Granted - I was throwing it in as an aside, and worded that poorly. I should have said that they clearly explained when the separation does and does not apply, but the conventional way many people use it is clearly false.

    The Establishment Clause is best left for another post, so I'll hold it here. (Where were you when I posted about this?! :) ) I'm sure I will revisit that at some point, however, so we'll discuss it then, hopefully. Or you could post about it! ;)

  30. 'But this IS a war! [And I'm not referring to the silly declaration.] '

    And this goes directly to why I think George W. Bush is the worst President in my lifetime. (I was born in 1957.) I think we are in a war, and President Bush is not governing like we are.

    Why do I say that? Compare Franklin Roosevelt. He appointed Frank Knox and Henry Stimson as Secretaries of the Navy and of War respectively. Knox had been Alf Landon's Vice Presidential running mate in 1936, and Stimson had been Herbert Hoover's Secretary of State (and decades before, William Howard Taft's Secretary of War). It would be like Bush appointing Madeline Albright and Joe Lieberman as Secretaries of State and Defense today. But who is the only Democrat in Bush's cabinet? The Secretary of Transportation! Even Bill Clinton had a Republican Secretary of Defense.

    Even more damning, Bush has refused to subjugate his domestic agenda to the good of the country. Franklin Roosevelt gave up the New Deal almost completely in order to gain public support -- and funding -- for the war effort. In 1967, Lyndon Johnson accepted huge spending cuts and a tax increase in order to pay for the Vietnam escalation -- seriously crippling his Great Society program. But Bush continues to push his partisan agenda. No President ever has tried to push tax cuts during a war. We will pay for decades.

    The net result is that a substantial fraction of Americans don't believe that we are even at war! They think 9/11 was a one time abberation, and that Bush is using circumstances to push his right wing domestic agenda. They are not smoking something; Bush's actions give them plenty of reason to hold to that belief. Not since the American Civil War has there been such a high level of opposition to something that is fundamental to the country's future.

    If we are indeed at war -- and I think we are -- the President should act like it. We will not win this war with the support of 51% of the public. Bush does not understand this.

    'the conventional way many people use it is clearly false.'

    I think I made my point that the way the ACLU interprets it is much more consistent with the way Madison and Jefferson wrote about it than the way that contemporary conservatives wrote about it.

    'Or you could post about it! '

    Maybe I will! We forget the sordid history of the theocractic rule in much of colonial America, and the rather drastic measures that Madison and Jefferson thought were necessary. But I'm on vacation for the next week, so it will have to wait until I return.

  31. Enjoy vacation!

    You're somewhat correct on Bush not treating this as a war properly, though I (as you probably guessed) disagree on your specific examples. Did Lincoln and Wilson have opposition members in their Cabinets? Did any of the wartime Presidents face an opposition that was so diametrically opposed? WWII was something the entire country was behind - granted, there's a different issue here, that Bush doesn't have the whole country behind him. But the far left was coming up with 9/11 conspiracy theories very soon afterwards.

    And the tax cuts, we've discussed previously. What it's done for the economy (long-term) is extraordinary. Too bad Congress isn't cutting wasteful spending enough to make it obvious.