President Bush's
nomination of Samuel Alito Jr. to the Supreme Court was supposed
to set off a war. After the smooth, smiling, bulletproof John
Roberts Jr., Alito looked like a fat target for Democrats. A sitting
judge with a long paper trail, he had the reputation of being
as conservative as Justice Antonin Scalia -- and he would replace
a moderate, Sandra Day O'Connor. Interest groups on both sides
were primed for all-out combat.
But two months later,
the looming war looks more like a paintball contest: a choreographed
romp that may leave the antagonists a bit spattered but will spill
no blood. Though plenty of liberals view him with intense dismay,
Democratic senators show a curious reluctance to charge the enemy
position.
Why? Because of one
of the unwritten laws of Washington: When you oppose a president's
judicial nominees, you can't give your real reasons. (The same
principle applies when you support them.) You have to devise explanations
that give the impression of olympian impartiality. And in this
case, plausible objections are hard to come by.
One easy way to justify
a "no" vote is to pronounce the nominee unqualified,
inexperienced or mediocre -- charges that killed Harriet Miers'
nomination. Another good pretext is misconduct, actual or alleged.
Douglas Ginsburg went by the wayside amid revelations that he
smoked pot long after college, and Clarence Thomas was nearly
voted down after Anita Hill accused him of sexual harassment.
If all else fails, an arrogant manner will suffice, as Robert
Bork learned.
By the usual criteria,
Alito is a dream candidate: a widely respected lawyer with a wholesome
family life, no significant ethical lapses, 15 years of service
on the federal bench, and the highest possible rating from the
American Bar Association. But to the administration's critics,
those attributes make him a nightmare. Though Alito is not the
kind of justice most Democrats would like, he's the kind of nominee
that many are loath to vigorously oppose.
If Alito is such
a stellar nominee, why would Democrats want to vote against him?
For the same reason Bush chose him: He's a conservative. But just
as Bush insists that merit alone mandated Alito's selection, liberal
senators feel obliged to act as though ideology does not enter
into their decisions.
These pretenses bring
to mind Rene Magritte's painting of a smoker's pipe, titled, "This
is Not a Pipe." In naming Alito, the president said he is
"scholarly, fair-minded and principled." Fine traits,
but not sufficient to close the deal. Plenty of highly accomplished
judges were passed over by Bush purely because they are too liberal.
The administration
may claim it just wants to find judges who will strictly interpret
the Constitution and avoid legislating from the bench. But its
allies make clear that their chief concern is results.
The conservative
Committee for Justice has endorsed Alito on the grounds that his
critics at the American Civil Liberties Union have "fought
for the right to desecrate the American flag" and have worked
"to see that children are not protected from online pornography."
CFJ doesn't mention that when the court sanctioned flag-burning,
it had the support of Scalia, that supposed model of judicial
restraint. Nor does it note that among the justices voting to
block the Children's Online Protection Act were two conservative
heroes, Scalia and Thomas.
Some liberals, like
those at People For the American Way, say upfront that they oppose
Alito because he's at the other end of the political spectrum
-- "ultraconservative," as they put it. But Senate Democrats
prefer to talk about things like his respect for privacy and deference
to precedent. It's a rare Democratic senator who will declare
outright, as Vermont's Patrick Leahy has, that he will vote on
the basis of ideology.
As a libertarian,
rather than a conservative or a liberal, I find Alito to be congenial
to my outlook about half the time -- which, given his sterling
credentials, means I'm inclined to support him. However I ultimately
come down, though, I won't deny that ideology matters to me, just
as it matters to President Bush, the Committee for Justice and,
come to think of it, Alito himself.
Democratic senators
shouldn't be ashamed to admit that it also matters to them. Saying
the Senate should vote on Supreme Court nominees without considering
ideology is like saying people should choose their food without
considering taste.
Copyright
2005 Creators Syndicate
