Tuesday, January 31, 2006


Last week Judge Samuel Alito was confirmed as the newest US Supreme Court justice. His confirmation vote of 58 – 42 which fell largely along party lines, was a much needed victory for President Bush and a big loss for the Democrats. Unlike other legislative defeats however, the Democrats brought this one on themselves and they did it in a way that both added to the already poisoned atmosphere in Washington and set a new and unfortunate standard for the confirmation process.
Until recently, nominees to the Supreme Court were judged based on their character, qualifications, intellect and dedication to the tenets of the Constitution, the document which they are employed to interpret. With the nomination of Judge Roberts and now Samuel Alito, Senate Democrats have demonstrated that they will now base their votes on the nominee’s personal political beliefs. In other words, you could be the most brilliant legal mind in the world, and be superbly qualified for a seat on the bench, but if your opinions differ from those of Senator Ted Kennedy, you can forget it.
When Bill Clinton was president, his nominees were treated very differently. Republicans gave both of his liberal nominees, Stephen Breyer and Ruth Bader Ginsburg a free ride. They were approved by overwhelming margins with Ginsburg receiving 96 votes and Bryer getting 87. As we all know, Republicans rarely gave Clinton a free pass on anything he did, but the GOP overwhelmingly stayed true to the idea that it is the president’s choice as to who he wants to put on the nation’s highest court regardless of the nominee’s ideological leanings. That unwritten privilege of the presidency is one of the consequences of a presidential election. As long as the candidate is qualified and is of a reasonably high moral character, the Senate has always honored an obligation to abide by the president’s wishes and approve his nominee.
As soon as Alito’s nomination was announced the liberal Democrats determined that they would try to stop Alito even though they knew that it would be an uphill and almost certainly futile battle. The reason for this was simple: in one word….abortion. In their role as the defenders of Roe v. Wade, the Democrats believed that if confirmed, Alito’s vote would take the court one step closer to overturning the landmark 1973 decision which federally guaranteed the right to an abortion. This decision has come to define the modern Democratic Party and no issue is more important to the party’s base. This meant that any senator who had any desire to run for the party’s presidential nomination in 2008 had to oppose Alito. Otherwise, if Roe was overturned and Alito cast the deciding vote, a senator’s primary election opponents could point to them and say “Roe v. Wade is no more and that Senator is to blame.”
The Democrats had to find some excuse to not vote for Alito, and to stop him if possible, so they cracked open their old playbook on how to destroy a Supreme Court nominee. I think it’s called Borking for Dummies.
Alito is a mild-mannered kind of guy, so they couldn’t attack his temperament as they did in defeating Reagan Supreme Court nominee Judge Robert Bork. Alito had no history of inappropriate sexual behavior, so that took the Clarence Thomas strategy off the table. The strategy that many Democrats had used in the confirmation hearings of Chief Justice John Roberts hadn’t worked either. Asking the nominee questions related to how he would rule on a given case with a controversial issue involved have been largely ignored by all nominees in recent years.
The nominee usually chooses not to answer these questions so as to not paint himself into a corner when the time comes to actually rule on the case itself. When the nominee refuses to answer the question, Democrats (Senate Minority Leader Harry Reid for one) say that as a result of the lack of a specific answer they simply don’t know enough about the nominee to vote for him in good conscience. This reasoning was incredibly hypocritical in Robert’s case however, because many of the questions he refused to answer were the same ones that Ruth Bader Ginsburg refused to answer when Clinton nominated her. In fact, Ginsburg refused to answer far more questions that either Roberts or Alito, and can you really blame any of these nominees for refusing to answer questions on how they would rule on cases involving controversial topics? It is obvious that the senators are just baiting them--trying to get them to say something that will give the opposition a real reason for voting against the nominee.
Because this option had been ineffective against Roberts, the Democrats were at a loss. Desperate, they decided to use two old Democratic favorites: class warfare and the race card.
Senator Richard Durbin (D-Illinois) was the first to use what became the Democratic talking point for the week, saying that in his years on the bench Alito had a history of deciding cases in favor of big corporations and against the “little guy”. Of course this is ludicrous. Even if it were true, a judge’s job is to uphold the law. Whether it benefits Bill Gates or Joe Six Pack is irrelevant. Needless to say, this strategy didn’t last very long.
With time running out, Senators Durbin, Schumer (D-New York), and Kennedy (D-Massachusetts) decided to pick up a handful of mud and let it fly. In what qualifies as one of the most repugnant examples of political demagoguery in recent memory, the Democrats attempted to paint Alito as racially insensitive.
Using a group that Alito had once been a part of known as “Concerned Alumni of Princeton” the Senators tried to connect him to an issue of the group’s magazine, in which one of the articles had contained some racially insensitive comments. Forget that Alito had never read the article, nor did he know the individual who wrote it. It was guilt by association all the way. If I subscribed to Sports Illustrated and one issue included an article in there about how great the L.A. Clippers are, does that mean that I love the Clippers? Of course not, you’d have to be insane to love the Clippers.
Anyway, the Senators continued to imply that Alito was a racist and were having a grand old time until his wife broke out in tears exposing the questioners as nasty and mean-spirited. This put an end to the Democratic strategy, as well as any hopes they might have had of defeating Alito’s nomination.
Americans now backed the Alito nomination by a substantial margin. In contrast to the Democrats, qualifications were what appeared to matter to them, not ideology. So at this point the Democrats were done embarrassing themselves to make a political point, right? Wrong.
As the confirmation vote approached, Senator John Kerry called from Switzerland and alerted the media that he would be wasting everyone’s time by attempting to filibuster the nomination. Kerry knew perfectly well that he lacked the 41 supportive votes needed to sustain said filibuster, but he went ahead with it anyway. We can only presume that he did this to gain favor with his party’s left-leaning primary voters, and to remind them that he is still available to lose future presidential elections, if they will only entrust him with another nomination.
Finally, on Tuesday the Senate voted to confirm Samuel Alito to the U.S. Supreme Court, just in time for the President to show off his victory at The State of the Union address later that evening.
Right now it seems that the Democrats don’t care whether or not a judge is highly qualified for the job, as long as he or she is committed to upholding Roe v. Wade. Democratic Senators like Harry Reid gave a rather warm reception to Harriet Miers, who’s personal beliefs may have been more to the left’s liking, but she was stopped by Republicans who rightly forced the administration to pull her nomination based on the fact that there were dozens of more qualified judges waiting in the wings.
In addition to this, Democrats don’t seem to be concerned with the fact that many people on both sides of the abortion debate, question the constitutionality of Roe v. Wade. Support for a woman’s right to choose does not necessarily translate into support for a federal guarantee to the abortion procedure.
Some defenders of the Democrat’s bad behavior will undoubtedly view the minority’s actions as justified in order to draw attention to what they see as the inevitable erosion of our fundamental rights. But the precedent that the Democrats have now set for opposing Supreme Court nominee’s is a very dangerous one that could dramatically hinder the President’s ability to do what is required of him in the constitution.
By opposing a nominee because his political beliefs don’t jibe with the ideology of the opposition party, the president could potentially be forced to find a consensus candidate rather than the one that he feels is the most qualified for the job. No one, regardless of what party you align yourself with, is well served by forsaking quality in exchange for moderation. In other words, the absence of a swing vote, is not an excuse to diminish the presidents power, as it relates to one of his most important responsibilities. .
One must also think about the consequences of this new precedent in a bipartisan manner. The Democrat’s vote against Alito may come back to haunt them if Republicans decide to adopt the same philosophy. If a Democrat becomes president and the GOP maintains its Senate majority, it is very possible that conservatives will feel justified in using the same tactics that the Democrats have used, in order to stop any presidential nominee with whom their political views differ. I sincerely hope that the GOP would take the high road and not use these divisive tactics, but in the end they may feel it necessary to fight fire with fire.
The most unfortunate aspect of what the Democrats did to Judge Alito however was how their actions elevated the already bitter partisan divide in both Washington DC and around the country. In his response to the president’s state of the union address on Tuesday, Virginia’s Democratic governor Tim Kaine stated that “Our greatest need is for America to heal its partisan wounds and become one people.” If the Democrats really believe this, it is not evident in their behavior. This kind of hypocrisy is a perfect example as to why America is still unsupportive of the Democratic Party despite congressional scandals and serious reservations about President Bush and his agenda. If it continues, the Democrats can count on wandering through the political wilderness for many years to come.

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VE said...
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VE said...


1. A insightful analysis on how the Democrats (please don't call us Dems, I don't know why I find that word so disheartening) are grasping at straws these days. And I mostly agree with you.

2. You talk of America supporting Alito because they're more interested in qualifications. I would argue that Joe Six Pack AKA The Common Man AKA Whoever The Hell doesn't KNOW Alito's qualifications. What they know is that they want the Supreme Court to veer to the right, Bush has appointed Alito, therefore Alito must steer to the right.

3. Personally, I think the Presiden't responsibility (in these highly partisan times) of appointing Supreme Court Judges is one that should be revisited. The Constitution, as we were all told in Middle School American Government Class "is a living, breathing, evolving doscument." Bush's appointment of a right-swinger like Alito was just as much a partisan appealing-to-my-base move as the Democrats trying to stop him. That's all any of these dickwats seem to be doing these days - playing into the image of their party that the media insists on projecting.

4. Some unloaded but upfront questions, Dan -
a) Do you think it's good for the country to have a right-leaning supreme court?
b) All partisan BS aside, how do you feel about a woman's right to an abortion?

I just read "Freakonomics." Dude makes a pretty good argument that the dramatic drop in the crime rate in the mid 90s (despite everyone forcasting a rise based on precedence) is due in large part to Roe V. Wade. (And by the way - You wanna talk about gross playing-to-your-base moves? - Bush renaming the anniversary of Roe Vs Wade "Sanctity of Life Day?" Gross. Ew.)

That's all for now.

Anonymous said...

A laudable commentary on how the confirmation process is being used as it was NOT intended and on the bipartisan mess unraveling on the Hill. You have a good grasp of the issues, Panda-Man.

Anonymous said...

The only laudable thing is panda-man's ability to polarize an issue by spinning, distorting or ignoring facts. He definitly has a good grasp on the ultra-right's talking points for this issue.

Anonymous said...

The panda man also clearly avoided direct questions, so I don't think one can laud his grasp on anything:

Let's repeat what someone said earlier: 4. Some unloaded but upfront questions, Dan -
a) Do you think it's good for the country to have a right-leaning supreme court?
b) All partisan BS aside, how do you feel about a woman's right to an abortion?

Where are the well-supported answers? Or are you waiting for these questions to show up on a talk show so once you hear a talk show host speak on these ... then you'll know what to say ...?

Falling Panda said...

Bart, my reponse to you was untimely and for that I apologize. I also want to thank anonymous for lighting that fire under my ass and reminding me to respond to his questions. So here we go.

1. I only use the word Dems because it's shorter. Everybody gets to refer to the Republicans as the GOP so until the Dem's come up with a catchy three letter abriviation for their party, their stuch with "Dems" Perhaps I should have a contest to see who can come up with one.

2. I think youre right Bart. The average American does not know the name of any of the Supreme's, with the exception of Thomas, due to his explicit hearings.

However, I think that those same Americans could probably care less as to which direction the court veers. The exception is of course the overly simplified Roe V. Wade decision which is so polarizing that it has taken on a life of its own, even outside the court chambers.

What I think people who paid attention to the hearing rejected to was the way Alito was treated, and the effect it had on his wife. A lot of people who may not have been interested in the hearings otherwise came to sympsthize with Alito and decided to support him for this reason, not because of ideology.

In addition to this. Most people don't have the time or desire to rack their brains figuring out whether or not they support a SCOTUS nominee and they therefore defer to the President that has been elected to make the decision for them. After all it's in his job description.

3. I'd love to hear any ideas you have as to another way to select SCOTUS nominees, that would be less politically charged and in which the nominee's themselves would not be forced to bow to special interests or political pressures.

4. Finally the big one. I'll adress the second part first. b.) I believe that women should have the right to an abortion during the first two-trimesters but never in the third trimester, unless the womans life is at risk. At the point at which the fetus can survive outside of the womb I would not support abortion.

The argument that an exception should be made for the "health" of the mother could be considred, but needs to be more narrowly defined than it is now.

My support of abortion is the same as my support of drug-legalization in many ways. Making the practice illegal may lower the number of abortions signifigantly, but will also lead to an increase in dangerous abortions and turn the doctors who perform them into criminals.

This being said. I do not think that Roe v. Wade was rightly decided. The issue should be left up to the states. We must remember, that even if you support abortion rights as I do, at least 45% of the population thinks that the practice is equivilant to murder in almost all cases. Just because I disagree with this idea, does not mean that these people should not be given a say in the debate, so unless you want to make a constitutional amendment, state legislatures and governors should have the final say on this issue.

Finally a.) Do I think it's good for the country to have a right-leaning Supreme Court? No. I don't care what a justices ideology is. I want a supreme court justice to strictly interpret the constitution, and to be fair minded and have exceptional knowledge of the law. Otherwise I don't give a hoot as to what their ideological leanings are. I do have a problem when a judge on any federal court begins making laws, because of a ideological viewpoint, and this tends to happen more often with liberal justices that conservative ones. Liberal justices also tend to interpret the constitution less srticly.

It is important to note however that many cases heard before the high court do not fall upon party lines. But it's unfair to say that a judge has reached a decision specifically due to his ideological leanings, without reading his or her decision. I encourage everyone to do so the next time a controversial case comes before them.

"Freakonomics" is sitting on my bookshelf waiting in line to be read.

"Sanctity of Life Day" Hadn't heard that one, but it doesn't suprise me.

Abortion is on the front line of the culture war and the president is the most signifigant figure in our culture. Therfore, by default, he's got to go one way or the other on the issue or kiss his job goodbye, regardless of what party he is a member of. Bush has publicaly tried to avoid this issue as much as possible, because it doesn't help him much. His base was not going to vote for John Kerry, simply due to the fact that Bush's anti-abortion rhetoric was not loud enough, but he has got to appease his Evangelical base in the same way that Clinton had to satisfy the abortion-on-demand segment of his party. Remenber when he vetoed the partial-birth abortion ban. Twice.

Anywho, I hope this response makes up for my negligence since you posted. Keep responding. More to come.