January 14, 2006
Detoxing Alito
By William
F. Buckley
Those who hold hands
with the future at night and relay their divinations tell us that
Judge Alito will be OK'd by the Senate Judiciary Committee by
a party vote. Some reach even further and predict that he will
be confirmed by a party vote, but that there might be a little
maneuvering on the floor in the matter of a filibuster.
One is told not to
expect a filibuster because it is a weapon of last resort, and
weapons of last resort should be kept for last-resort use. Several
times, in the recent past, the question has been raised whether
to tackle the perception of a filibuster as a parliamentary device
invented by Mr. Smith when he went to Washington to throw himself
athwart corruption.
There is a soft place
in conservative hearts for the filibuster, because it can be viewed
as a means to arrest an arrant majority from carrying out its
designs on an oppressible minority. When last fall it was proposed
that the filibuster be faced head-on, a working arrangement was
made. Democrats in the Senate promised that the filibuster would
not be used except in grave matters. This was a way to communicate
that presidential nominations would not be paralyzed by filibuster
threats. To break a filibuster requires a vote of 60. But to abolish
the filibuster requires a vote of only 51. And the Republicans
command a majority of 55.
What is likely to
happen next week is a great deal of oratory expressing the dissatisfaction
of Democratic senators with the nomination of Samuel Alito. This
will involve the deployment of a great deal of hot air. The questioning
of Judge Alito was so comprehensive, it is inconceivable that
persistent detractors will find much to ventilate in any contest
confined to the merits of the case. And the same is true of other
witnesses questioned about Alito. Civil Rights Commissioner Peter
Kirsanow, for instance, spoke about Alito's record on civil rights
cases. Kirsanow testified that more than 90 percent of Alito's
opinions in such cases were concurred in by his Democratic colleagues
on the 3rd Circuit Court.
Listening to Kirsanow,
and to judges who have served with Alito, observers had, most
of them, the feeling that there really wasn't very much left to
keep apprehensions about Alito alive, other than that he was created
by an unpopular president. But senators can't give that as the
reason for opposing Alito. It simply doesn't sound quite right
to say, "I will vote against the nominee because President
Bush named him." A senator prepared to say that should be
prepared to call for an amendment to the Constitution denying
the president the right to nominate judges.
There are
questions of constitutional importance that overhang the deliberations
of the judiciary committee. Mr. Alito wasn't able to pronounce
where, exactly, he believed the authority of the executive ends.
Many references were made to the Youngstown decision,
which, in 1952, told President Truman that he did not have the
authority to take over the steel mills. Judge Alito declined to
say whether the authority claimed by President Bush to conduct
surveillance met the standards laid down by Justice Robert Jackson
in that case.
Efforts to
pin Alito down on abortion were futile, and (in the judgment of
some) morally intrusive. What Alito said was that the Roe
decision of the court, acknowledging a woman's right to terminate
a pregnancy, had been substantially reaffirmed in later decisions,
which tended to solidify its standing. However, there was still
litigation challenging it, and therefore, as a potential justice
of the Supreme Court, he would not give advisory judgments.
An extraordinary amount
of time was given to Alito's not having recused himself from a
case in which Vanguard was involved, Vanguard being the mutual-fund
company that manages Mr. Alito's money. On this matter, Judge
Edward Becker of the 3rd Circuit Court spoke acidly, and introduced
me to a word I hadn't heard before. Becker explained why, for
his own part, he had not recused himself from cases involving
Vanguard even though his wife owned shares in the company: "I
do not identify Vanguard on my recusal list because I am satisfied
that my wife possesses no ownership interest in the Vanguard management
company, which is what controls the recusal determination. She's
never received a proxy statement, an opportunity to vote for directors
or any indicia of ownership other than her aliquot share in the
fund to the extent of her investment." Aliquot! Aliquot interests,
OK!
But even as it will
be a party vote on the judiciary committee, it will very possibly
be a party vote on the floor. You begin by counting what one might
call the John Birch wing of the Democratic Party. These are folk
who see military-industrial complex members under their beds,
scheming against minorities and civil rights.
What disappoints those
who like to think of themselves as celebrants of democracy is
the tribal tendency to take shelter in voting with the majority.
There are certainly 25 Democratic senators who, if they submitted
to a polygraph test, would confess that they believed Samuel Alito
qualified to serve on the Supreme Court. But they seek the protective
company of their fellow Democrats, and so, while talking about
the need to do one's duty, will fail to do so in respect of this
nomination.
Copyright
2005 Universal Press Syndicate
