David Mayer has an interesting piece up on the confirmation hearings discussing “Senatorial Activism”:
If Harriet Miers, President Bush’s original nominee to succeed Justice O’Connor, had not withdrawn her nomination – in other words, if the Miers nomination were still alive for Senate consideration – Senators would have good reason to regard her nomination quite skeptically. The Senate Judiciary Committee hearings would focus on the critical question – Is she qualified to serve as an associate justice on the U.S. Supreme Court? – along with a second important question about her ability to be independent of the executive branch. That’s because Ms. Miers was a close personal friend and crony of President Bush; she also was someone whose record showed no background – no prior judicial experience, no expertise in constitutional law – that would qualify her for any federal appellate court, let alone the most important court in the land, the U.S. Supreme Court. By all accounts, Harriet Miers was a crony of the President, absolutely unqualified for the position he was nominating her for – a textbook example of the kind of person whose appointment to high government office the framers of the Constitution gave the Senate the “advise and consent” power to thwart. (For more on this, see my October 27 entry, “Mier’d in Mediocrity and Mendacity.”)
Samuel Alito is as different from Harriet Miers as a nominee can be. Like John Roberts, he is superbly well-qualified to be a Supreme Court justice. Indeed, Judge Alito’s qualifications far exceed those of Chief Justice Roberts, in terms of prior federal appellate judicial experience. Judge Alito, after having been confirmed unanimously by the U.S. Senate in 1990, has served 15 years as a federal appellate judge, on the U.S. Court of Appeals for the Third Circuit – giving him more federal judicial experience than 105 of the 109 Supreme Court justices appointed in U.S. history.
Because no one can seriously question Judge Alito’s superb qualifications for the Court, the debate over his confirmation has focused on his judicial philosophy. (In other words, because the Senate has no legitimate basis for refusing to confirm Judge Alito to the Court, the special-interest groups that oppose his confirmation have been urging members of the Senate Judicial Committee to engage in “Senatorial activism” – to inquire into matters that go beyond the legitimate scope of the Senate’s confirmation powers, to inquire into Judge Alito’s personal views, not only the legal positions he has taken as an appellate judge over the past 15 years but also the positions he took 20 years ago when he worked as an attorney in the executive branch of government – matters that are irrelevant to his confirmation, properly considered.) And the debate over Judge Alito has resurrected, with a new twist, the traditional “left versus right” debate over constitutional interpretation that has dominated most issues of constitutional politics for the past 20 years or more.
He is on to something. Were the roles reversed, and we had a Democratic President who had put forward a wholly qualified nominee (as, I think, we all agree Alito is), Republicans would have to focus all of their attempts at derailing the nomination on aspects of judicial philosophy they dislike. Or, as I feel is the case with the Democrats and Alito, they would simply put on a good enough show to appease their interest groups.
Alito is clearly qualified. I don’t think I care much for the man, and I don’t think he and I would see eye to eye on damn near anything politically, but is that enough to stop the confirmation fo a man the President has chosen to be elevated to the court?
Barry
I believe that those signing statements alone are enough to disqualify him from any federal judgeship. IIRC, back in the Reagan era,Alito came up with the idea that the president could attach a statement to a law before signing it, and that this statement would have any weight whatsover, which is a clear violation of the separation of powers. After that, putting him in a judgeship is aiding him in that cause.
norbizness
According to that calculus, you could have a federal judge who believes that the Civil Rights Act is an unconstitutional piece of legislation (it’s under the Congress’ Commerce Clause powers, after all), and so long as he’s relatively experienced, it’s all good. Or you can ask Robert Bork about that.
The Supreme Court case(s) upholding the Civil Rights Act were in 1965, I think (Ollie’s BBQ?), as was Griswold v. CT. Those two cases seem to be untouchable. I guess that somewhere between 1965 and 1973, something goes from “precedent” to “super-precedent.”
Ancient Purple
Yes. The obligation of each Senator is to review the candidate, advise and consent to that person being on the court. Nowhere in the Constitution does it say that a Senator must consent to a SCOTUS candidate simply because he is “qualified.”
In short, if person X were judicially qualified to sit on the SCOTUS, but was very clear that he saw nothing immoral about owning slaves or treating women as chattle, I doubt you could muster more than a handful of votes for his confirmation.
Paddy O'Shea
Honestly I thought the article was bullshit. Nobody can question Alito’s “superb qualifications for the court,” therefore it must all be politics as usual?
I’ll bet even Rush Limbaugh would be embarrassed by such absurd chop logic.
This guy is little more than a lapdog for the same people who think unlimited domestic wiretapping is a good idea, that opening your mail is fine and dandy, that don’t think twice about incarcerating and torturing anybody they consider to be an enemy of the United States no matter how baseless the charges, and want to crawl into your bedroom to see if you’re fucking within the limits of the law.
I’m sending Robert Byrd a pound of my Hair Raiser coffee so that he can make good on his promise to fillabuster this asshole from here to wherever it is lice like him comes from.
Cyrus
It’s unlikely to succeed, obviously, but why not even try? If trying to advance your agenda through diplomacy and horse-trading rather than limiting yourself to voting is undemocratic or immoral, then failing to say “fuck you” as a greeting to everyone you dislike is dishonest.
I’m not suggesting changing the law, and I’m not suggesting anything deceptive. But if you think Alito would be bad for the country, which is the impression I get, then a duty to defer to the executive seems like a very bad reason not to try to do something about it. In the unlikely event that we see a filibuster, it would not bother me.
Lines
Ok, the author of the blurb in John’s post starts out by bashing Miers, when so many on the right wing were saying the EXACT things about her. That Democrats have no right to stand up against an appointment, that she’s qualified because the President says she is, that her views on certain things don’t matter.
When did we enter bizzaro world (I’m trying really hard not to f-bomb this post)? This is ridiculous to even be having this discussion, time and time again, with every nominee that the Democrats don’t feel fits to a standard they expect.
Stop telling Democrats how to vote, or stop expecting them to listen to you, John and all the other right-wing condescending bloggers. You look like the guy in Memento that couldn’t remember what happened yesterday and that everything is new today, except you don’t have the excuse of an injury, you’re just trying to be assholes.
John Cole
Lines- Where did I tell Democrats how to vote? This was clearly just a post to throw around ideas and to discuss things, and you got your knickers all tied in a knot.
I will tell you who the asshole is- it ain’t me.
LITBMueller
If Judge Alito is, as I suspect, a true-believer in Cheney’s extreme form of the Unitary Executive Theory, then he will never be qualified in my eyes, because he would be too willing to see the SCOTUS as inferior to the Executive branch.
The Other Steve
The first Supreme Court nominee to be declined by the Senate was John Rutledge, whose opposition was primarily motivated by his opinions against the Jay’s Treaty.
So don’t give me this shit that the Senate can’t vote against someone because of their opinions.
Quite obviously, the Republicans are voting for this man *SOLELY* because of his opinions.
The Other Steve
And yeah, this article is clear partisan hackery.
Paddy O'Shea
Lines: When John Cole says “I like this guy,” you need to take him by the hand and remind him of some of the other people he was so easily impressed by in the past.
You know, guys like George W. Bush.
We wouldn’t want to have him posting his heartfelt regrets over supporting the Alioto nimination sometime in the near future, right?
Doctor Gonzo
If qualification is all that matters, why have the Senate have a confirmation vote at all? Simply find a person that the ABA or whatever group you want finds to be “well-qualified” and automatically put that person on a court. If the Senate should not take a look at a candidate’s beliefs and philosophies, let’s take them out of the picture entirely and stop pretending.
Lines
John, when you say
you’re basically agreeing with Mayar. Alito isn’t qualified to sit on a Supreme Court anymore than Meirs, he’s not qualified to make decisions that can’t be changed in the future without extensive modifications to the current system. Bloggers like yourself keep pushing his qualifications as the only thing that is required for the Supreme Court, but don’t you think the American people deserve the best on the SC? Not just “acceptable”? Your denial that Alito’s record shows massive areas of concern and partisanship are discouraging and irritating.
ChristieS
I agree. My only non-negotiable area with any SCOTUS nominee is that they must believe that the Judicial branch is separate from and equal to both other branches.
In my personal fantasy world, the moment a Justice is seated on the SC, he or she instantly becomes non-partisan. ::sigh:: If only…
Davebo
I don’t think the author is qualified for any judicial position.
I’m looking at my constitution here and it doesn’t say anything about what inquiries are within the legitimate scope of the senate’s confirmation powers.
If a senator just thinks Alito has bad hair I suppose he could vote no. It would be silly, but he would be completely within his constitutional scope.
Alito will be confirmed in the end. That he will be forced to answer questions about some truly questionable judgements or writings from his past is part of the process. If he doesn’t like he, perhaps he should take the Miers route.
I’m sure Alito is upset that he has been forced to claim/admit he lied in some past writings to get a job. If he just can’t stand it, he can give up on this job.
Frank
Aside from Alito’s exteme partisanship, there is also the fact that his word is not good. He promised the Senate he would recuse himself if a case involving his financial interests or family came before him then he didn’t. If the Senate confirms him they will be saying ‘go ahead and lie to us, we don’t care.’ The hearings are just a worthless dog and pony show since Alito has a history of lying to get jobs he wants.
Greg
The issue with Alito is not whether he’s experienced, but whether he has the type of political independence necessary to be a justice at the level of SCOTUS. Cass Sunstein addresses this in a piece at TNR (http://www.tnr.com/doc.mhtml?i=w060109&s=sunstein010906) where he states, “The real question about Judge Samuel Alito, then, stems from the following fact: It is exceedingly difficult to find in an extensive record prominent or important cases in which, having room to maneuver, he chose a legal conclusion that sharply diverged from his political convictions.”
Sunstein gives examples of justices’ rulings from Scalia to Breyer which might surprise given their political leanings (indeed, as I find Scalia to be among the more brazenly political among them), and wonders whether Alito would look beyond his politics. That much is a legitimate question. Is it enough that the nomination will fail? Probably not.
Anderson
SIGHHHHHHHHHH …
John, as others have pointed out, nothing in the Constitution suggests that “qualified” is a pass.
The Supreme Court is a co-equal branch of the federal gov’t. It is the bottom-line interpreter of what the Constitution means. That is a political function. Inescapably so.
Why would any rational being put someone on the Court without inquiring into his politics?
Anything that’s a legitimate interest of the President’s in nominating a justice, is a legitimate interest of the Senate’s in confirming a justice.
ppGaz
Well, the strictly correct answer to that question is “no”, but not for the reason proposed.
The Senate is free to do whatever it wants to do. Labeling it “activism” is just more of the same divisive bullshit that permeates the political context these days. It’s an empty phrase, right up there with “family values” and “judicial activism”, misleading and deliberately intended to manipulate.
If the Senators want to ask Alito for his favorite eggnog recipe, they are free to do that, and then they are free to vote as they please.
In the end, as I said yesterday, Alito will be confirmed unless there is some big surprise coming. At this point it’s about counting votes. All the rest of what you see and hear, including (especially) the noises coming from all sides of the blogosphere, is just theatrical.
PS to lefties here: Of course Altio is qualified. Cut the crap.
demimondian
Simply put, John, the answer to the question is “Can the Senate turn down a nominee for no reason other than, say, not liking her taste in clothes?” is “Yes. In fact, yes, of course!” The president does not have the right to any nominee of his or her choice, even if, as in this case, the nominee is clearly supremely qualified for the job.
Will this nominee be confirmed? Yes. Should he? Possibly. Should the Democrats line up to say “I’m concerned about the following facts in the nominee’s history, and I consider them to be sufficient to cast a no vote”? Absolutely.
Lines
Paul: why is Alito qualified? Because his name was used in a great Boz Skaggs song?
Time on the bench is a great qualifier, but its not the only one. His capability to twist the Constitution and laws to his perceived partisan mentality are disqualifiers, and they do that as a much greater amount than his time on the bench qualifies him. This is a permanent seat, and the qualifications for such are much more than just knowledge of the law. A criminal may understand the law to a greater extent than the judge and manipulate the law in ways that no one could have predicted. The same thing goes for a SC judge, except that once those decisions are made, they are almost impossible to change.
Mr Furious
ppGaz:
I don’t think anybody said Alito is “not qualified” as far as judicial experience or a resume goes (though with guy can you believe what you’d read in it?). People have opined that his philosophy is not compatible with being on the highest court immune to review or appeal—a disqualification.
In their (and my) eyes, that renders him unqualified.
Mr Furious
For what it’s worth, I want to commend everyone on an excellent thread thus far. Some really good stuff up there. Maybe Darrell, Al and Tall Dave’ll be too busy to foul it up…
Mr Furious
Oh, and John, while I appreciate the “conversation starter” aspect, and it started a good one, that article is complete crap…
Yeah, judicial philosophy is soo overrated…
The Other Steve
Agreed. This is partisan hackery intended for no other reason then to promote divisiveness within the electorate.
…..
So I’m listening to Dick Durbin’s questioning this morning, briefly. He brings up a case Alito ruled on in the appellate. Apparently the question was whether the company was covered by a Coal Miners protection act. Alito dissented saying the company could not be regulated under that act. His other two colleagues said the company could be.(both Reagan appointees, BTW).
His reasoning… The company wasn’t a mine. Yes, technically it wasn’t an underground mine. It was like a storage location and the workers were shoveling coal into trucks to haul it away.
But Durbin read the text of the act, and it said it was applicable to the Coal Mining and Related industries.
I was just floored. How could someone possibly misinterpret the law so blazenly?
I wonder who those other two judges were? Maybe they should have been nominated to the court.
Mr Furious
Lines: That is a good song…
The Other Steve
Another correction here…
Harriet Miers was not opposed because she was “not qualified”. It was because she had some liberal history, and may or may not have fully supported the Republican Activist Judicial agenda.
ppGaz
Well, that’s an arguable presumption at best, don’t you think? If philosophy is a “disqualifier” then the whole issue of qualification is in the toilet. By this I mean, philosophy that is not outside the boundaries of reasonableness. But my boundaries in this instance are pretty wide. Scalia fits inside them quite easily, even though I disagree with virtually every thought and opinion I’ve ever seen and heard from him wrt to justice and government issues.
No, I think it’s important to make this distinction. Alito is clearly qualified. Whether he’s desirable or not, another matter. But on that point, you can just count the votes in the Senate, and the votes are there, he’s in. And to wrap a bow around this thread, how the Senate gets to that point is really up to the Senate. I give them the widest possible latitude.
demimondian
I’m actually kind of drooling for Alito’s confirmation. The one issue which has kept the Republican “big top”…err, I mean, “big tent”…has been the narrative power of the blatantly legislative content of _Roe_. Problem is, _Roe_ follows directly from _Griswold_ (pace Pooh — we can talk dev neurobio if you want), and everybody loves Griswold.
Alito is the single best threat to the big tent since Reagan.
The Disenfranchised Voter
Well said.
An impression I get about Alito is that he doesn’t believe in judicial review…
Can anyone confirm/debunk this?
John Cole
Bullshit. There were a shitload of folks, myself included, who were opposed to Miers candidacy from the beginning because we felt she was unqualified and just a crony. The very first thing I wrote on the issue, the day she was nominated:
One of the very first things Red State wrote (also the day she was nominated, and at my urging):
That the religious right finally decided to abandon Harriet Miers and rebut the President’s annoying and condescending “Trust me, she is one of us” may be what tipped the balance I will not argue. But to deny that there were a lot of people, myself included, who were loudly protesting that Miers was wholly unqualified is to rewrite history, and I am not going to let you get away with it.
demimondian
Actually, Mr. Furious, I’m interested in Al’s opinion on this. He’s no more partisan than you are, and I’m interested in whether he can draw a distinction between the Constitutional argument for the Senate’s power and this, or an equivalent left-wing, case.
Geek, Esq.
The Senate is more than a credentials committee. This isn’t a tenured position at a law school–this is something that affects people’s daily lives.
The ability to defeat a nomination is also a Congressional check on both the executive and the judiciary.
Robert Bork remains the gold standard for what constitutes an unacceptable nutter.
ppGaz
All true. Just add “The Senate has pretty much free reign in terms of how it goes about this process” and it’s even better.
I’d just tack on, as a ppG-esque thing to say, that Bork really is a nut case. I mean, avert your eyes — he’s hideous — nut case.
What might worry us is that the next Bork will have learned how to play the confirmation game. It’s about counting votes, and staying on message. More that a few nominees have gotten themselves onto the court by playing the game well.
My take on Alito so far is that he is very good at playing this game. I don’t see the Senators landing any blows on him at all.
The Other Steve
Ahh, but you are denying that the party was behind her right up until the day James Dobson heard she’d said nice things about abortion… at which point, only then was she abandoned. *THEY IGNORED YOU* *THEY COULD CARE LESS WHAT YOU THOUGHT ABOUT MIERS*
Being a qualified lawyer is quite obviously not what makes a good Supreme Court Justice, as far as Republicans are concerned. It’s only about how they will vote.
Claiming that’s bullshit is just being purposefully fucking obtuse. The history for the past 40 years has been Republicans whining about how they can’t get justices to vote exactly the way they want them to, and that history has resulted in an an incredibly partisan process for selecting justices, where time after time Republicans have nominated partisan hacks for the court.
We no longer can just pick good men like Warren Burger or Earl Warren. Nope, now we have to have a litmus test insuring that they’ll vote straight down the Republican platform.
So don’t give me this bullshit charge. You’re just being obtuse.
The Other Steve
Bork remains the gold standard because of the Saturday Night Massacre.
However, I actually do agree with Bork in many of his arguments regarding anti-trust law.
Blue Neponset
Is the Senate’s ‘advise and consent’ role the same for every type of candidate that comes before it or does this ‘activism’ thing only apply to judges? In other words, are qualifications the only consideration for an Attorney General, Secretary of State or Ambassador to the UN?
John Cole
It is bullshit. The Miers nomination did not die simply because the religious right in the end abandoned her. The majority of people opposed her because she was an unqualified crony, and the religious right dumping her in the end was the final straw. But the basis of the beginning of the end for Miers was a bunch of people like me (hell- the only person I remember supporting Miers was Hugh Hewitt) and others stating, correctly, that she was unqualified.
ppGaz
Good question. My take on it would be that the right has co-opted the idea that the judiciary should basically be a rubber stamp for the other branches, acting as an enforcer and interpreter of “correct” view of stricture (correct being whatever the right wants).
Anything that strays outside of that, in their view, is a form of “activism”. It’s a clever, effective, and toxic rhetorical trick, because it paints as “activist” anything that would lend power to things and ideas they don’t like. It works extremely well when manipulating the uninformed and ignorant (that is, their base) and it even works on the people in the middle sometimes, who are just too busy leading their lives to pay attention to politics.
However, they jumped the shark with the Schiavo thing, and blew their cover. A lot more people are on to them now. Their Big Lie isn’t working as well as it used to.
ppGaz
No, absolutely not correct. The man is as nutty as a fruitcake.