The anticipated summer “smack down” over President Bush’s Supreme Court nominee never happened. But now, as 2005 draws to a close, that nasty battle has finally begun. Americans should keep in mind the two nominations (one successful, the other not), which preceded the selection of the current nominee, Judge Samuel A. Alito Jr., and tell the Senate to reject this third nomination. A nomination that Christian conservatives “are coming out in droves to support.” (ChristianityToday.com Sheryl Henderson Blunt, week of October 31, 2005). Alito will portray himself as moderate when he meets with Democratic Senators. The Senators should remember that groups like the Christian Coalition, which calls itself “America’s Leading Grassroots Organization Defending Our Godly Heritage,” believe, with good reason, that Alito will support its Christian agenda. (ChristianCoalition.org)
When Chief Justice William Rehnquist died on 3 September 2005, Judge John G. Roberts, Jr. (originally picked to replace retiring Justice Sandra Day O’Connor) became the Chief Justice’s successor. Roberts, though impressive with his mastery of Supreme Court cases, and possessing an affable demeanor, was by no means guaranteed a smooth Senate confirmation. However, when the conservative Roberts was redirected to fill the conservative Rehnquist’s Chief Justice seat, rather than O’Connor’s so-called swing seat, the Roberts choice became, in political terms, an even trade: conservative for conservative. The Court’s balance was maintained, Roberts’ confirmation hearings and votes were quickly done, and the potential fight fizzled. The liberals who were prepared to attack, and the conservatives who had already begun to mount a combative defense for Roberts (and were running TV ads encouraging people to tell their Senators to support Roberts) both drew back.
Then came Harriet E. Miers. Remember her? Already a historical footnote, Miers was nominated to replace O’Connor, but never really had much of a chance. The opposing forces were marshaled, and this time they were ready for a real fight over the crucial swing seat. Except when the combatants looked around, they found that they were mostly on the same side. It seemed that almost no one, except for President Bush (the man for whom Miers had been White House counsel) thought her to be an appropriate choice. Critics trumpeted the fact that Miers had never been a judge. Although this had not previously been a criterion that kept nominees off the Court (such as the renowned, and very liberal Justice William O. Douglass for example), for Miers, this experiential deficit added to her other perceived failings. By elevating a person so close to him, and someone defined primarily by her devotion to him, Bush left himself open to charges of cronyism. Miers’ poor showing in her meetings with Senators did not help her case; after Roberts’ brilliance, she was distinctly unimpressive. Her lack of judicial experience was compounded by her unfamiliarity with constitutional law cases, and, due to that lack of experience, the absence of a judicial “paper trail” of decisions for the opposing sides to study.
Bush is keenly aware that the religious right’s support is vital to any Court nomination. Consequently, there were winks and whispers that Miers was “on board” with Roe v. Wade and other social issues. Conservative Christian broadcaster James Dobson stated on his radio program that Bush advisor Karl Rove had assured him that Christian conservatives needn’t worry about Miers’ views on these issues. Dobson asked his audience to support her, and alluded to “privileged information” he had received from Rove, saying, “when you know some of the things that I know, that I probably shouldn’t know ” she should be confirmed. The Senate Judiciary Committee even considered calling Dobson to testify at Miers’ confirmation hearings, to ask about this secret information. (Washington Post,Charles Babington, 24 October 2005). But those assurances did not convince the far right, and indicated to liberals that Miers might very well follow the conservative social agenda. Finally, Senators of both parties were unhappy that, due to Miers’ executive branch position, Bush invoked executive privilege and refused to disclose information (memos to the President on legal issues for example) that might possibly provide some indication of his nominee’s thinking on certain crucial issues.
Battered from all sides, Miers withdrew her nomination on 27 October. Over the following weekend, everyone waited for the next nominee. Would the twice-delayed Court fight be delayed yet again, or perhaps avoided with the selection of a justice in the O’Connor mold? “No” was the answer to both questions. On 31 October, Bush nominated Judge Samuel A. Alito Jr. to fill the O’Connor vacancy. In several articles, and on its Editorial Page, The New York Times, in staid and understated fashion, intimated that all hell was about to break loose. One editorial lamented Bush’s “lost opportunity” to choose a “qualified moderate” that most of the Senate, and the nation, could support. The news reports were more pointed. “A confirmation fight appeared inevitable,” noted the lead article, “over the swing vote that could shift the balance of the court and change the laws of the nation well into the century.” Another article called the nomination “Potentially, the First Shot in All-Out Ideological War.” (The New York Times 1 November 2005).
This “First Shot” is already spewing thousands of dollars across the land, as conservative and liberal groups prepare for a bruising battle. The web is inundated with group appeals for support, and money; in their requests, the conservatives emphasize two concerns, competence and values. The first is a non-issue, while the second is the fundamental reason Judge Alito should be rejected. Competence was a concern with the nomination of Harriet Miers, as both sides had questions about her ability to handle basic and complex constitutional issues. Not so with Justice Roberts, and not so with Judge Alito. There is no doubt about his qualifications for the Supreme Court. Conservatives tout Alito’s resume, and claim that this should be the end of the debate. Few on either side of the partisan divide seem ready to admit that sheer brilliance alone should not qualify a nominee for the Court. Except for Senator Patrick Leahy (D - Vermont), the Judiciary Committee’s ranking Democrat. For him, “This (the fight over Alito) is not over competence . . . This is the whole issue of ideology, and if the ideology is one that you go in with a predetermined agenda . . . They don’t belong on the Supreme Court.” (The New York Times 4 November 2005).
Conservatives know ideology is the crucial issue; the conservative web site “Right March” sounds the call, “Let’s Fight For President Bush’s Conservative Nominee” (RightMarch.com, 9 November 2005). So, one can ask, why shouldn’t liberals also follow the ideological yardstick that Senator Leahy suggests?
Liberals might want to look back to the 1988 presidential election as a point of reference. In that race, Democratic nominee Governor Michael Dukakis of Massachusetts campaigned against the first George Bush (then the Vice President in Ronald Reagan’s administration). In order to dramatically differentiate himself from the ever popular, strongly conservative Reagan (who, though not the candidate, still exerted a powerful pull on the electorate), Dukakis campaigned as the competent candidate. “This election,” he said, “isn’t about ideology. It’s about competence.” (Michael Dukakis Democratic Presidential Nomination Acceptance Speech, 21 July 1988). Bush and the conservative Reaganites mocked that assertion, emphasized Bush’s “Reaganism”, and rode roughshod over Dukakis. Debates about the allegedly ultra-liberal ACLU, flag burning, and Dukakis’ image as a typical soft-on-crime liberal, dominated the campaign. The death knell for Dukakis ultimately came by way of the infamous televised Willie Horton advertisement. That ad, which excoriated Dukakis over crimes committed by Horton while out on a prison furlough program, was hard-knuckled, conservative ideological politics at its meanest. The 1988 presidential election wasn’t about competence; as much as anything, it was about conservative Republicans attacking the liberal candidate, and using the “L” word to smear Dukakis, assuring defeat for an already reeling, and not very “competent” challenger.
Let’s be clear that now, in 2005, the battle over Judge Alito is not about competence. It’s about values — conservative values. Bush chose Alito precisely because the judge’s rulings support right leaning values. And he should be rejected for his willingness to support conservative Christian values in his rulings. On the federal bench, Alito supported Pennsylvania’s law that prohibited a married woman from having an abortion without notifying her husband (Planned Parenthood v. Casey 1991). Justice O’Connor was the key vote when the Supreme Court rejected that doctrine. (The New Yorker 14 November 2005). The Christian Coalition applauded the dissent, and Alito as the courageous “lone dissenter.” (ChristianCoalition.org 31 October 2005). Further, a 1985 Alito memo, published on 14 November 2005 in the Washington Times, clearly states his strong conservative values. The memo was part of an application that Alito, then assistant to Solicitor General Rex E. Lee, submitted for the job of Deputy Assistant to Attorney General Edwin I. Meese III. “I am,” he wrote, “and always have been a conservative.” Further he stated, “I am particularly proud of my contribution in recent cases which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to abortion.” (WashingtonTimes.com Bill Sammon 14 November 2005).
From what I have seen of Judge Alito’s comments on abortion and the landmark 1973 Roe v. Wade Supreme Court decision, he is working to placate both sides. He seems to accept the importance of precedent in a case like Roe v. Wade, which is now almost 35-years-old. He told Senators “in private meetings in recent days he has ‘great respect’ for precedent, including the 1973 Roe v. Wade ruling But he would not say whether he would continue to uphold that ruling.” (CNN.com Bill Mears 14 November 2005). Conservative Kansas Senator Sam Brownback implied, after he met with Alito, that he thought Alito might be open to rethinking the abortion ruling. When they listen to Alito, liberals need to be careful not to hear what they want to hear. Liberal groups like People For the American Way, and its website, SaveTheCourt.org, are already in the fray. Liberal and moderate senators in both political parties should not accept the idea that Alito’s strong intellectual abilities alone qualify him for the Court, should not assume that support of precedent before confirmation assures the safety of Roe v. Wade, and should not provide Alito with a Supreme Court seat.
Liberals must also avoid lowering their guard, especially in the face of conservative Christian attempts to infuse American life and politics with their religious beliefs, and to promote judges throughout the judicial system who will put a legal imprimatur upon those attempts. Since 1980, the religious right has diligently exercised its muscle in elections at all governmental levels. It helped swing Ohio and the election for Bush in 2004. Elections and court appointments are high on its “to do” list, and it does not shy away from any challenge to its political agenda. Recently, the Christian members of the Kansas Board of Education incorporated sweeping anti-evolutionary teachings into the state high school curriculum, and even reworked the very idea of what science is. This resolution, of course, does not alter science, any more than passing a resolution that there was, or was not, a God would make either of those assertions true. In my state of Pennsylvania, the town of Dover’s School Board’s attempt to force “Intelligent Design” (which, in its focus on a so-called “designer” and not God, might be categorized as creationism lite), is in court. This case, or one like it, may eventually end up in the Supreme Court, where opponents of evolution no doubt hope to find a friendly reception. Based on Alito’s views about church-state relations, I would expect him to be more willing to support a state’s desire to impose these religiously based, anti-evolutionary beliefs in a school curriculum.
It is true that once on the Supreme Court, justices have grown, changed, and found their own respective ideological paths, often away from the President who appointed them. Dwight D. Eisenhower’s appointee, Earl Warren, is perhaps the most notable example of just such a change. Republican Warren was Thomas Dewey’s vice presidential running mate in 1948, and also the governor of California. Few, especially Eisenhower, expected Warren to become the most liberal Chief Justice ever, and someone who led the Court to momentous decisions in the areas of civil rights, the separation of church and state, and the rights of those accused of crimes. Still, it is ultimately up to the Senate to decide whether Alito will be confirmed. Democrats, and Republicans, must remember that it is the duty of the opposition to oppose.
The presidential election of 1800, which pitted incumbent John Adams against Thomas Jefferson, was a crucial moment for American democracy. The election resulted in a peaceful transfer of power from John Adams and the Federalists, to Jefferson and his opposition party, the Jeffersonian Republicans. The fundamental (and quite rare at the time) principle was firmly established, namely that opposition to those in power, and even the drive to remove them from office in free elections, would not be equated with disloyalty to the Constitution. Unfortunately, in recent years, especially since the mid-1990s when the Republicans took control of the Congress, the country and the Congress have become more polarized. There is less of an inclination to compromise, with the opposing party more likely to be seen as the enemy. Both parties “have moved away from the center and see no need to look back.” The average party unity in Congressional votes is around 90% for each party. (Isaiah J. Poole, CQ Weekly 28 December 2002).
This is not the moment for Democrats to shy away from presenting their opposing viewpoint. Senate Majority Leader Bill Frist (R - Tennessee), recently sent an e-mail to members of his political action committee, VOLPAC. The memo warned that he would not permit Senate Democrats to interfere with the Senate’s duty, and block, or filibuster, Alito’s nomination. “The Senate,” he wrote, “is not a rubber stamp.” Senators, he argued, should debate Alito’s record and then vote, not filibuster. Frist feels that if Democrats use the filibuster, a Senate procedure that is geared to protect an opposing minority (against a nominee they feel should not be on the Court), “I will not hesitate to put the constitutional option before my colleagues.” (Bill Frist, “Drawing the Line in the Sand” VOLPAC e-mail, 9 November 2005). The Republican majority will impose its power, prohibit the filibuster, and change Senate rules to assure Alito’s confirmation, and guarantee a conservative majority on the court, which will exert an enormous impact on our lives, well into this century.
In 1788, in Federalist 69, during the struggle over the Constitution’s ratification, Alexander Hamilton wrote to assuage the fear of some, and deny the charge of others, that the newly created Presidential office was designed for a king. He emphasized that the Congress provided a crucial roadblock to any presidential attempt to assume kingly powers. He discussed various limits on the president, and wrote that, “The President is to nominate and with the advice and consent of the Senate to appoint Ambassadors and other public Ministers, (and) Judges of the Supreme Court . . .” (Alexander Hamilton, The Federalist Number 69, emphasis Hamilton’s). Hamilton, who was an unabashed advocate of strong central government, nevertheless saw this constitutionally mandated legislative power as an important restriction on the President. Senators must do their utmost to defend the church/state separation, which is so vital to American liberty. They should perform their constitutional duty, and reject the nomination of Samuel A. Alito Jr. to be Associate Justice of the Supreme Court.