Let the Great Debate Begin!!

[Bonnie]

November 1, 2005

By George Will

http://www.realclearpolitics.com/Commentary/com-11_1_05_GW.html

WASHINGTON -- With the nomination of Samuel Alito, the nation's long-term needs and the president's immediate needs converge.

Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the Founding Era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision. The nation has long needed a serious debate about the proper nature of that supervision. And the president needed both a chance to demonstrate his seriousness and an occasion to challenge his Democratic critics to demonstrate theirs in a momentous battle on terrain of his choosing. The Alito nomination begins that debate.

When Churchill's wife said it was perhaps a blessing in disguise that British voters turned him out of office even before the war in the Pacific ended, he growled that, if so, it was very well disguised. President Bush must realize that the failure of the Harriet Miers nomination was such a blessing.

He quickly cauterized that self-inflicted wound and acted on this political axiom: If you don't like the news, make some of your own. Presidents are uniquely able to do this, and Bush, because of his statesmanlike termination of the Miers nomination, was poised to reorient the national conversation. And because of the glittering credentials that earned Alito unanimous Senate confirmation to the 3rd U.S. Circuit Court of Appeals, those Democrats who are determined to oppose him are unhappily required to make one of two intellectually disreputable arguments.

One is so politically as well as intellectually untenable that they will try not to make it explicitly. It is that judicial conservatism may once have been a legitimate persuasion, but now is a disqualification for service on the Supreme Court.

To which there is a refuting question: Since when? Since 1986, when 98 senators -- including 47 Democrats -- voted to confirm Antonin Scalia 98-0? Since last December, when Harry Reid, leader of Senate Democrats, said that Scalia would be a fine nominee for chief justice?

Reid doubtless would respond that Scalia would have been acceptable only because he was replacing someone comparably conservative -- William Rehnquist. Which brings us to the second disreputable argument Democrats will be reduced to making: Because Alito is more of a judicial conservative than was Sandra Day O'Connor, he is unacceptable because it is unacceptable to change the court's intellectual balance. This argument is triply flawed.

First, nowhere is that rule written. Second, the history of presidential practice -- Democrats should especially study FDR's sweeping alteration of the court's composition -- refutes the rule. Third, when in 1993 the Senate voted to confirm the very liberal Ruth Bader Ginsburg, former counsel to the American Civil Liberties Union, to the seat being vacated by the retirement of the conservative Byron White, 96 senators voted for her, including 25 Democrats still serving in the Senate. Including Reid. Including Pat Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Herbert Kohl and Russ Feingold, all members of today's Judiciary Committee.

Reid urged the president to nominate Miers, whose withdrawal Reid says he laments. Now Reid deplores the Alito nomination because it was, Reid says, done without Democratic ``consultation.'' But it was during such consultation that, Reid says, he warned the president not to nominate Alito. So Reid's logic is that nothing counts as consultation unless it results in conformity to Democratic dictates.

When Reid endorsed Scalia for chief justice, he said: ``I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute.'' There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?

This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- ``results" -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

This is a debate the president, who needs a victory, should relish. Will it, as Democrats mournfully say, ``divide" the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.

 

[Hagbard Celine]

If you don't like the news, make some of your own. Presidents are uniquely able to do this, and Bush, because of his statesmanlike termination of the Miers nomination, was poised to reorient the national conversation.

??? Statesmanlike? His advisors told him to nip Miers in the bud because she was a boneheaded nominee that even turned his own party against him. Why don't you just post a picture of Ann Coulter hissing at the camera? That would be about as unbiased as most of the articles you post.

 

[Mr. P]

??? Statesmanlike? His advisors told him to nip Miers in the bud because she was a boneheaded nominee that even turned his own party against him. Why don't you just post a picture of Ann Coulter hissing at the camera? That would be about as unbiased as most of the articles you post.

You don't read much George Will, do you?

 

[Bonnie]

Celebrating Alito
By John Tabin
Published 11/1/2005 12:08:32 AM
Ahhh, that's better.


http://www.spectator.org/dsp_article.asp?art_id=8958

After the Harriet Miers debacle, President Bush's nomination of Samuel Alito for the Supreme Court feels like jumping out of a pressure cooker and into a swimming pool. And it's a swimming pool where a rough game of full-contact water polo is about to break out; liberal interest groups are gunning for him, and Democrats are already considering a filibuster. In his 15-year tenure on the 3rd Circuit U.S. Court of Appeals, Alito has distinguished himself as one of the most impressive jurists in the country. One need only look at his record to see just how little water the coming effort to portray Alito as a crusading right-wing extremist holds.

Alito wrote for the majority in a split 2-1 decision in ACLU v. Schundler, ruling that a City Hall decoration in Jersey City, New Jersey, passed constitutional muster. A theocratic effort to merge church and state? The display in question featured a nativity scene, a menorah, Santa Claus, Frosty the Snowman, a Christmas tree with Kwanzaa ornaments, and a sign proclaiming the city's commitment to diversity. In a parade of silly Establishment Clause lawsuits filed the ACLU, this one stands out for its silliness.

In Saxe v. State College Area School District, Alito wrote the opinion in a unanimous ruling that a state anti-harassment policy violated the First Amendment by extending to speech that was neither vulgar, nor school-sponsored, nor likely to disrupt school work. The plaintiffs were Christian students seeking the right to proclaim homosexuality sinful; perhaps Alito is a gay-hater? Anyone making that argument will have to contend with Shore Regional High School Board of Education v. P.S., in which Alito sided with a high school student who was so mercilessly bullied for his perceived homosexuality that he attempted suicide in eighth grade. Alito wrote for a unanimous three-judge panel, ruling that the school board, by rejecting the student's request to transfer to a high school away from his tormentors despite his qualification for special education due to emotional disturbance, shirked their responsibility under the Individuals with Disabilities Education Act to provide a "free appropriate public education."

In Fatin v. INS, Alito wrote the majority opinion siding with an Iranian woman seeking asylum, writing that she could credibly plead a well-founded fear of persecution if she found Iran's "gender specific laws and repressive social norms" abhorrent. In Williams v. Price, Alito wrote the opinion granting a writ of habeas corpus (that is, a right to make a case for unlawful imprisonment) to a black man convicted of murder because state courts refused to consider the testimony of a juror who heard other jurors make racist remarks. Given the parts of Alito's record in which he comes off almost as a bleeding-heart, it's almost obscene that People For the American Way calls Alito an "opponent of fundamental legal rights and protections for all Americans."

What PFAW and their ilk care about, of course, is abortion. It's a good bet that Alito would vote to overturn Roe v. Wade, but even here, Alito's record is hardly that of a pro-life activist. He wrote a dissent in Planned Parenthood v. Casey, a spousal-notification case in which the Supreme Court ultimately laid out the reasoning for upholding Roe out of deference for precedent despite hints that a majority of Justices no longer would have supported Roe at the time. "The Pennsylvania legislature could have rationally believed," wrote Alito, "that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion."

But he voted in Planned Parenthood of Central New Jersey v. Farmer to overturn New Jersey's partial-birth abortion law, arguing in his concurrence that the lower court was bound by the Supreme Court's decision in Stenberg v. Carhart (though he did not endorse the reasoning of Stenberg). And he joined the majority in the 2-1 split decision of Elizabeth Blackwell Health Center v. Knoll, which struck down Pennsylvania's law requiring women who have been raped to report the crime when seeking state funding for abortion, on the basis that the law was invalidated by a Clinton administration policy that prohibited states from adding conditions to Medicaid abortion funding. Alito is a judge who rules based on his reading of the law, not based on his policy preferences.

For the interest groups of the judicial left (and the Democrats who are beholden to them), that's the problem. They want judges to bend the law to fit a political agenda, just as long it's theirs. Doesn't that seem a little extremist?