The Alito Vote, Partisanship, and Balance

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Well, the Senate voted this morning. Judge Samuel Alito has been confirmed in his nomination for the Supreme Court with a vote of 58-42, with all senators voting. It was entirely on party lines except for the crossover votes by Robert Byrd (D-WV), Lincoln Chafee (R-RI), Kent Contrad (D-ND), Tim Johnson (SD), and Ben Nelson (NE). As usual, Jim Jeffords (I-VT) voted with the Democrats. I imagine all the red-state Democrats who seemed as if they might vote for Alito decided that voting for cloture yesterday gives them cover as non-extremists. I suspect that won't be enough for some of them, though. Justice Alito is expected to take has already taken his two vows today [this happened before I submitted this post, but I discovered it afterward]. He is officially Justice Alito now, and he is expected to appear publicly for the first time as a Justice of the Supreme Court in robes at the State of the Union this evening. A formal investiture ceremony will take place but has not been announced yet.

I have two observations about this whole process, which I think together lead to a very interesting conclusion:

1. This isn't as close as the vote for Clarence Thomas, which was 52-48, but that was under a Democratic Senate. More Democrats supported Thomas than Alito. Alito got 4. Thomas got 11. That Senate did include such Democrats as John Breaux and Zell Miller, however. There are no Democrats in today's Senate who are that conservative (though Byrd comes close on judicial issues, and Lieberman comes close on foreign policy issues).

2. Most of the views they've been complaining about are views that are close enough to Justice O'Connor's that all the rhetoric about how extreme his views are is really at odds with all the rhetoric about changing balance on the court. His views on federalism, criminal prosecution, religious freedom, capital punishment, and several other issues. His views on abortion aren't clearly any rightward of hers. She's expressed as much opposition to abortion as he has. She overturned the reasoning behind Roe v. Wade as unconstitutional. She thinks abortion can be limited in many ways that groups like NARAL have criticized Alito for allowing. He opposed overturning Roe outright, which is exactly what her decision in Casey refused to do. He's more conservative in enough ways that I'd call him a solid conservative as opposed to her being a moderate (a more conservative moderate than Justice Kennedy, as it happens). But on substantive issues I'm not sure he's much more conservative than her on many of the very issues the Democrats have been raising.

He's not like Justice Thomas on the issue of precedent but takes a view exactly like the one Roberts expressed at his hearings (despite many attempts on the left to pretend that the views aren't the same simply because Alito doesn't like the way Roberts put it, but that issue reduces to semantics). Thomas thinks precedent should be overturned when wrongly decided. That's pretty much outside the legal mainstream at this point, though I think it's an eminently reasonable view. But Alito does not share it. He's right inside the mainstream on this, right where O'Connor is.

On the executive powers issue, Alito said amounts to anything close to what they've portrayed him as saying. He thinks the president controls the executive. He thinks the FISA law is on the face of it at odds with what the president has been doing, and he'd have to get into the details of the case and hear the president's detailed legal arguments before evaluating if this is a case where the president's powers detailed in the Constitution do indeed involve an illegitimate breaching of the law. Any judge, before facing such a case, has to say exactly that sort of thing. If he didn't, he'd have to recuse himself when the case came before him. So what are the Democrats expecting him to say? Or are they simply trying to force him to recuse himself?

What this means is that a nominee who is clearly less conservative than Justice Thomas is getting much less of the vote from the opposing party than Thomas did. That makes me think Bush would have had to have nominated not a moderate but an outright liberal to have gotten majority Democratic support. That's very bad. It's politically bad because Republicans have no such litmus test on political views for nominees, which means liberals will continue to be confirmed overwhelmingly, as the clearly very liberal Breyer and Ginsburg did a little over a decade ago. That means the court will always tend to be more liberal than the elected officials, making it a court well out of step with the people of the United States. It's also bad judicially, because it means it doesn't matter how restrained a judge is. Confirmation depends much more on whether the party that happens to be in control of the Senate is the same party of the president doing the appointing (at least when it's a Republican president). Judicial restraint as opposed to judicial activism in the true sense (as opposed to its shorthand usage in public political dialogue, which simply means the judge is politically acceptable regarding results) is basically out the window.

One further observation: Those emphasizing the issue of balance on the court should now be happy, if balance was really their ideal for the makeup of the Supreme Court. President Bush, with the advice and consent of a clear majority of the Senate, has now restored balance to the court. For a long time it's been weighted to the left, with three conservatives, two moderates, and four liberals (by most evaluations, though it's really a little more complicated than that). Now by the same sort of reckoning there are four conservatives, one moderate (the more liberal of the two on every issue but abortion), and four liberals. That's about as balanced as you can get. Balance isn't really the goal we should have for the makeup of the court. I'd happily exchange any of the four liberals for a solid judicial conservative any day. But those claiming to be motivated by the balance of the court should be happy that the court is about as balanced as it can possibly be.

But it's not balance many of those opposing Alito's nomination want. The obection can't be that this nomination would give the rightward justices a majority, because it doesn't do that. What they're upset about is that it's more balanced. There's no longer a liberal majority. There's no majority at all. They've lost their majority, and they wanted to fight that tooth-and-nail. No one was willing to put it that way, but I think that's pretty much the motivation. Balance is less good than a liberal majority, in the view of most Democrats voting no on this nomination. I have no problem with a politician holding such a view. Politically speaking, I hold the inverse view and just admitted it. Ideally when it comes to a judicial role, I don't think such political considerations are the right way to approach anything at all, and those voting for or against confirmation should not be focusing on them. But politically I do prefer a right-heavy court. I'd prefer to elect presidents who will seek to appoint judges and justices whose opinions will have a more conservative outcome.

I think that's the main source of the sense of outrage here on the part of many Democrats. They prefer a leftward court, and they've had it for so long that they're not about to allow anything like a presidential election (and senatorial elections, for that matter) to lose it if there's anything at all that they can do. Ultimately, there was nothing they could do in this case. But they ought to admit that the issue here is the loss of a liberal-leaning court rather than hiding behind this notion of balance that they clearly don't support.

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Justice Alito from Uncle Sam's Cabin on January 31, 2006 2:29 PM

Judge Samuel Alito has been confirmed to the SCOTUS despite various chicken little performances by opponents of his nomination. Better him than me. Read More

2 Comments

This statement from your post is untrue:

"It's politically bad because Republicans have no such litmus test on political views for nominees."

Throughout the Clinton years, the Senate blocked many Clinton District/Circuit Appeals Courts nominees in committee. In substance, nothing different that what the Democrats tried to do with Alito.

I'm talking about Supreme Court nominees. For that you need to look to Breyer and Ginsburg, clear liberals.

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