January 8, 2006

The NYT editorial before the Alito hearings... and what to expect to read after the hearings.

Here's the NYT editorial about Samuel Alito, whose confirmation hearings begin tomorrow. It doesn't oppose him, but highlights areas of concern. Does that mean they won't oppose him, after the hearings are over, and it becomes possible to say, we said we were concerned about these areas, and his answers didn't satisfy us?

Let's remember what happened with John Roberts, whose performance at the confirmation hearings is now held up as a model of near-perfection. Here's the NYT editorial, "Too Much of a Mystery," that was written after the hearings:
John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week. But in many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach. That makes it difficult to decide whether he should be confirmed. Weighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval. But the unknowns about Mr. Roberts's views remain troubling, especially since he is being nominated not merely to the Supreme Court, but to be chief justice. That position is too important to entrust to an enigma, which is what Mr. Roberts remains....

If he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice. But it is a risk. We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.
I expect the editorial at the close of the Alito hearings to follow that pattern. Of course, there's this line about Roberts:
We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high.
But that's easily tweaked:
We might be reluctant to roll the dice even for other nominations to the Supreme Court, but for a nomination to replace Sandra Day O'Connor, whose centrist vote has held the Court in balance for many years, the stakes are simply too high.
But the Times is right to raise concerns about Alito:
Judge Alito's confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."

The White House has tried to create an air of inevitability around Judge Alito's confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.
Alito must know that he needs to endorse the precedential importance of the right of privacy (the way Roberts did), or all hell will break loose. I expect Senator Specter to assist him in laying in that cornerstone of confirmation as early as possible in the hearings. I expect the abortion issue to be packaged away neatly enough, though various Democrats will continue, ineffectually, to harp on it.

But there are plenty of other issues to raise, including many timely and important matters about the scope of executive power. We have every reason to think that Presidents pick nominees who put a high value on executive power, and this President is pushing the limits of executive power and is therefore especially motivated to find judges who will support him. The Senators really do need to defend the legislative branch with some tough questioning here. Listening to the debate this week will give us all a good opportunity to think about what the balance of power between the President and Congress should be.

UPDATE: Stephen Bainbridge goes through the editorial and refutes it point by point.

8 comments:

Sloanasaurus said...

It would be nice to se the abortion issue go away. What we really need are judges who will not allow this country to commit suicide by doing things such as extending the U.S. Constitution to the battlefield.

Its all fine for countries such as Canada or Belguim or Spain to surrender. Those countries don't matter. If the United States surrenders that is another matter. Judges like Alito will be the bullwork against leftist weakness.

dave said...

Those nasty partisan Democrats! If we could only just eliminate them all and let George be George!

Ann Althouse said...

Dave: Is that supposed to be responsive to my post? If so, say why.

Commander Carrots said...

Sloanasaurus: "Its all fine for countries such as Canada or Belguim or Spain to surrender. Those countries don't matter." The arrogance of this statement is disturbing.

On another note, I find it odd that Supreme Court nominees would try to avoid explicitly saying if they plan to overturn Roe v. Wade.

If they're anti-abortion, and they truly believe that the majority of the country supports that position, then why would they try to obscure their point of view?

Or conversely, if they're anti-abortion but they think the majority opposes them, then why would they try to lie their way onto the supreme court, only to impose their views against the will of the majority?

Anonymous said...

Noah Feldman, Law Professor at New York University and one of the first planners and consultants of the Iraqi constitution on why Alito must be blocked.

Our Presidential Era: Who Can Check the President?

ZHID said...

There's more commentary on this weekend's NY Times editorials at www.vengefulzhid.blogspot.com

M. Simon said...

Here is an interesting article by Instapundit on why Roe was a bad decision.

The reason given is that it was a correct decision decided on the wrong grounds. Judge Bork gets an unfavorable mention too.

Judge Bork is a Xth Amendment absolutist. He thinks it has no meaning. How is that for legislating from the bench?

Pyrthroes said...

Any Supreme Court nominee of a Republican President --anyone whatsoever-- will face slime-mold discursions from Senate Defecrats. To pretend otherwise, by conjuring research into (say) Alito's record, or by citing "precedents" to which all must genuflect, is folly-- pure and simple. Nothing anyone says, nothing that Alito has done, is doing, or may do, will affect the Kennedy-Dean school of "hate Republicans".

After Leahy's vicious obfuscation over some four years, this current menage has already postponed "hearings" (sic) for entirely too long. Chick-a-biddy Schumer et.al. care precisely nothing for issues of character and principle, certainly not "the law" which as Holmes famously said "is what we [the Court] says it is". Get that?-- Congress is the cowpath over which lowing herds of jurists wind gently o'er the lee.

Waste four days on Reid et.al., calling up their squealing porkers. Then put in the Big A and wait for the next case. Someone's gotta sit on what we jovially call "the Bench". If Mde Ginsberg, a raging Leftist ideologue, is even marginally acceptable, the Leahys and Schumers we know and love can have no quarrel with a putative neutral like the A.