November 1, 2005
Let the Great Debate Begin
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.
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.
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
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.
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
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
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.
2005, Washington Post Writers Group