Give credit when credit is due. Some of the larger newspapers this morning are asking some questions of Judge Alito that any of us would want him to answer. In fact, I would say that judging by the seriousness with which the Washington Post, The New York Times, the Los Angeles Times, and the Washington Times all approach today’s confirmation hearings, I would say it bodes well for the public debate over the qualifications and temperament of the nominee.
I say public debate because you and I both know where the debate in the Senate is headed; into the sewer. Or lower if the Democrats can manage it.
That said, here are some excerpts from some very thoughtful editorials in the above mentioned newspapers:
The Post frames the issues fairly while eschewing the tactics of the radical left in trying to personalize the confirmation debate:
So for the nominee, the hearings are a chance—his only chance, really—to allay Democratic hostility toward his nomination, which has been stoked both by legitimate concerns about his record and by no small amount of fevered and unfair political rhetoric. For senators, meanwhile, it is a chance to try to tease out whether Judge Alito is a traditional conservative of the type who ought to be confirmed or an outlier or extremist who ought to be rejected. The stakes are high, as they always are with Supreme Court nominations and because in this particular instance, Judge Alito would be replacing one of the court’s swing voters.
At the same time, the hearings are unlikely to provide big surprises. Judge Alito, in any formal sense, is obviously well qualified—as the American Bar Association recently recognized. Allegations of impropriety on his part seem trivial, and the ideological questions about him are well known: Does he have too limited a view of congressional power and too robust a view of states’ rights? Will he respect privacy and abortion rights? Does he consider affirmative action programs presumptively unconstitutional? How broadly does he see presidential powers, particularly in wartime? What does he think now about the “one man, one vote” principle he appeared to question in the 1980s? Has he read civil rights statutes too narrowly? And perhaps most important, what are his views concerning how readily settled precedent should be disturbed?
The Times points out where the burden of proof falls given that Alito has written more than 300 opinions that outline his judicial philosophy for all to see:
The burden of proof falls on Democrats to show why not. “We look forward to supporting you,” Sen. Ted Kennedy told Judge Alito in his 1990 appellate-court hearings, calling the then-nominee “distinguished.” On Friday, Mr. Kennedy was quoted in The Washington Post accusing Judge Alito of supporting “unfettered, unlimited power of the executive.” If Democratic opinion of Judge Alito has changed for reasons other than political expediency (and we can’t read those words as anything other than a Democratic gamble that extremely dubious charges of wiretapping overreach and illegality will stick) then the argument should be aired.
Even the rabidly anti-Bush LA Times is behaving itself this morning. Outside of a couple of gratuitous swipes at the President, the paper frames some interesting points:
As Justice Sandra Day O’Connor eloquently stated in a Supreme Court decision reining in an instance of executive overreach: “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
There is reason to press Alito, who would replace O’Connor on the court, on whether he agrees with this statement. And it’s not simply because he is a conservative judge, which this president is legitimately entitled to nominate, or that he served for many years as a lawyer in the executive branch, as many of Washington’s best and brightest lawyers have done. It’s because Alito in the past has asserted a radically expansive theory of presidential power.
While I would take issue with the use of the adjective “radically” in describing Alito’s view of expanding executive powers, the question is a legitimate one and I would be very interested in hearing the Judge’s views on it.
The Times actually does something interesting. They asked 6 legal experts to write 5 questions they would want Judge Alito to answer.
They range from the interesting –
Do you think judges are at least in part responsible for the fact that, while Americans might profess reverence for the law, they often criticize the legal system? Does some of the public’s criticism stem from growing use of foreign and international sources of law by some judges in interpreting the meaning of the Constitution?
asked by Federalist Society Executive VP Leonard Leo, to the ridiculous –
In light of your having been a member of a Princeton alumni group that opposed the university’s admission of women, criticized its affirmative action policies and urged the admission of more alumni children, can you offer two examples of any efforts by you to promote gender or racial equality?
asked by moonbat ex Clinton impeachment attorney Cheryl Miller, to the thoughtful –
Do you believe that the 9/11 attacks put the United States in a state of war with Al Qaeda and its allies?
by former influential Bush Justice Department lawyer John Yoo, to the specific –
In 1944, the Supreme Court affirmed the constitutionality of the internment of American citizens of Japanese descent. Justice Felix Frankfurter wrote in a concurring opinion that an action taken in wartime “is not to be stigmatized as lawless because like action in times of peace would be lawless.” He and others in the majority believed that in times of war, security interests outweigh rights that would otherwise be controlling. Do you agree or disagree, and do you think that the issues raised by this event (for which the United States later apologized) are like or unlike the issues raised by the current detention of enemy combatants?
asked by Professor of Law Stanley Fish.
Of course, the chances of Alito answering any of these questions specifically is just about nil. But if you listen how the Judge frames his answers to questions that are sure to come about executive power, precedent, minority rights, and other hot button issues, you should be able to get a handle on where the Judge might come down on some of those excellent questions.
It’s too bad that Senate Democrats couldn’t follow the example of the press and give these hearings the seriousness they deserve. Instead, the cold political calculation of partisan advantage will rule the day as Alito and the Republicans will be forced to parry the blows as best they can.