If the reaction by the special pleaders in the civil rights lobby and their various mouthpieces in the media is any indication, one would think that the Supreme Court ruling striking down some race-based preference plans for purposes of “integrating” schools thus making them more “diverse” will bring back the bad old days of little black children being barred from entering the pristine halls of white schools while men with white hoods hover in the background with ropes and burning crosses.

In fact, the more exaggerated the response to decisions like this, you can bet that there is precious little the left can do to argue based on the facts. Substituting hyperbole and issuing dire pronouncements about the imminent return of segregated schools and the evisceration of Brown v. Board of Education only obscures the unsettling nature of the decision itself; and that is that quotas suck.

Now I’m not a lawyer. But I have been blessed with my fair share of common sense which, when talking about the law, should more than suffice in forming an intelligent opinion regarding the efficacy of one legal issue or another – usually. The problem (and I’ve written about this before) is that the American people have become disconnected from the law in a way that the Founders could never have envisioned. Its complexity, its obscurity, its sheer, mind numbing, all-encompassing embrace of every facet of our lives breeds ignorance and contempt for not only the law but those who seek to interpret it or use it for one purpose or another.

So all the overwhelming majority of us have when it comes to trying to gauge the fairness or unfairness of the law is our common sensical notions of right and wrong as well as a dependence on those who do, in fact, have the expertise to interpret it. The problem, if you’ve read enough about this school quota system case, is that not everyone sees the decision the same way. There are different interpretations, different issues emphasized.

In the end, even after educating ourselves, all that we non-legal experts are left with is good old fashioned American ideas about fairness and justice. Come to think of it, that’s not such a bad way to interpret the law in the first place.

As mentioned above, the left is having an apoplectic fit:

The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Yesterday, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality.

Since 1954, the Supreme Court has been the nation’s driving force for integration. Its orders required segregated buses and public buildings, parks and playgrounds to open up to all Americans. It wasn’t always easy: governors, senators and angry mobs talked of massive resistance. But the court never wavered, and in many of the most important cases it spoke unanimously.

Yesterday, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated.

Is that true? Did the Supreme Court of the United States really throw out 50 years of desegregation law and order schools to “Resegregate” as the New York Times helpfully coins the word of the day?

Not so fast.

Race conscious policies using non racial means are favored and must be attempted first; race based assignment policies that target individual students (as opposed to structural reforms like school siting policies) are permitted if they make individualized determinations and use race as only one factor.

Oh my, here goes those evil conservatives again, wanting to treat people as individual human beings rather than as a member of a “group” or “class” or “protected group.” What’s a civil rights lawyer to do?

There’s much more at that Balkinization link and you should read the whole piece because Mr. Balkin and others (including Paul Mirgenoff at Powerline) are training their legal eyes on the concurring opinion of Justice Kennedy who Eugene Volohk points out, has been the swing vote in every single 5-4 decision this term.

As I understand it (and anyone out there is more than welcome to correct me if I’m wrong), while the majority opinion – written here by Chief Justice Roberts – forms one leg of the law, concurring opinions can be given weight by lower courts as well – assuming they are well written and clear enough in where they dissent from the majority opinion. In this case, Justice Kennedy concurrence becomes extremely important because he dissented from Robert’s opinion in a couple of key areas. Powerline has one:

Today’s Supreme Court decision in the race-based school assignment cases turns out to be a disappointment. Chief Justice Roberts wrote an excellent opinion explaining why the two plans are unconstitutional, and four other Justices agreed with the result. However, one of them, Justice Kennedy, would not sign on to a key part of the Roberts opinion—the part that says assigning students to schools by race cannot be justified as a means of achieving a racial balance in particular schools that reflects the school district’s racial demographics. This leaves the door open for school systems to develop different types of plans for assigning students by race for that purpose, and then to try and persuade sympathetic lower courts that the plan in question does not run afoul of what Kennedy said in his concurrence.

Beyond the inherent undesirability of this result, Kennedy’s opinion strikes me as a poor vehicle for it. Unless I’ve missed something, Kennedy does not provide much guidance about the kinds of plans for assigning students to public school using race as a factor he would uphold. Kennedy’s opinion will become the touchstone by which the constitutionality of racial discrimination in public school assignment will be judged. Having conferred this role upon himself, he should have been more clear about what he will and will not accept. His lack of clarity may leave school districts confused and lower courts unbound.

Sabotage by Kennedy? Or common sense? Here’s Jack Balkin again:

Nevertheless, Kennedy has no problem with race-conscious policies by school boards that don’t involve the specific assignment of individual students to schools based on their race. That means that race conscious policies that site new schools or move old ones based on expectations about likely racial makeup are permissible. Policies that assign students randomly by lottery or use factors like geographic distance from a school are also perfectly permissible, even if they are designed to achieve a more diverse balance of students by race and ethnicity. For example, a school district that used magnet schools with assignments based on nonracial factors to promote racial diversity would be permissible under his model.

This seems eminently fair and equitable to me. I have no problem with diversity in our schools as long as it is achieved with a minimum of fuss and a maximum of common sense. Steven’s concurrence would seem to fit that definition although Paul’s caution about the vagueness of his wording should be taken to heart. But at least the Roberts opinion puts a brake on purely race based decisions by school boards – something that is long overdue.

What has happened to the idea of judging someone “not by the color of their skin but the content of their character,” as Martin Luther King pleaded for in front of the Lincoln Memorial so many years ago? We have gotten so far afield of the idea that the law’s protections are ultimately extended to individuals, not groups that when a ruling like this comes down, a “protected class” as defined by the law howls bloody murder.

No, we are not a color blind society – far from it. Institutional racism is not a thing of the past nor is it likely to decline without at least some intervention of government and the courts. This, ultimately, was what Brown v. Board of Education was all about; a recognition that only the federal government was powerful enough to overcome 300 years of bigotry and racism.

But in the last few decades, this intervention by the courts had proved in some cases to be arbitrary, capricious, and just plain unfair. The American people – both black and white – sensed this on more than one occasion and protested – to no avail. Pushed by the special pleaders in the civil rights lobby as well as a liberal credo that demanded we pay homage to “white guilt” while working toward a more “diverse” and “multi-cultural” society, “civil rights” lost its meaning and became just one more issue that high paid lobbyists worked the Hill to grab whatever goodies and special benefits they could from Congress for their constituencies.

Any opposition to orthodoxy as dictated by the special pleaders – be it on issues like affirmative action, or employment law, or any other issue they deem it necessary to apply their narrow interpretation of “fairness” or “justice” – will bring immediate cries of “racist” in order to tar their opponents with the slimiest epithet in the American political lexicon. This makes discussion impossible – unless you are willing to accept the parameters they set for debate.

This Supreme Court decision will cure none of this, of course. But it injects a little much needed common sense into our debates over how best to make the words in our Declaration of Independence and Constitution live for everyone and not just those who by accident of birth enjoy certain advantages over their fellow citizens.

To those of us on the right who still vigorously support the President in the War on Terror, the Hamdan ruling presents us with a golden opportunity to start repairing the damage our detainee policy at Guantanamo has inflicted upon our constitutional principles as well as our image abroad.

To those on the left who, despite the unambiguous ruling by the Supreme Court in Hamdan that we are indeed in a shooting war with al-Qaeda, but still insist that the War on Terror is some kind of gigantic Rovian plot to win elections, the decision is a godsend. It gives liberals a second chance to prove they are serious about protecting America from her enemies by joining with the President and Republicans in Congress in resolving the legal status of detainees in such a way that satisfies both the demands of justice and our national security.

Camp Delta has become an iconic symbol worldwide of American hypocrisy in the War on Terror. The name “Guantanamo” will go down in history with other notorious prisons such as the French nightmare penitentiary on Devil’s Island and the North Vietnamese disreputable POW camp known as “The Hanoi Hilton.”

Regardless of whether or not Guantanamo matched those two facilities in sheer brutality and horror, the fact remains that the narrative supplied by western media to describe Guantanamo to the rest of the world has made it so. And in propaganda, perception is everything. There are no starving skeletons or daily beatings as there were on Devil’s Island and the Hanoi Hilton. But the brutality that has been confirmed by independent observers, including our own military and the FBI, is real enough and has brought shame to the United States and damaged our reputation as a champion of justice and human rights among friend and foe alike.

These are simply the facts. It does no good to argue that what goes on at Guantanamo doesn’t rise to the level of torture. Not anymore. One of the main findings in Hamdan was that the detainees at Guantanamo – no matter how bloodthirsty and heinous their crimes – are entitled to the protections of the Geneva Convention. This includes being protected against “[o]utrages upon personal dignity, in particular, humiliating and degrading treatment.” This means that many of the relatively mild “stress techniques” of interrogation well documented elsewhere were and are illegal.

And that’s only the half of it. The Hamdan decision also knocked the chocks from underneath the government’s position that it could try Guantanamo detainees using the rubric of military tribunals. While sympathetic to the reasons given by the government for using the tribunals – namely that trying terrorists in open court could endanger the innocent – the Supremes nevertheless firmly ruled that such tribunals violated the Geneva Convention and hence, U.S. law.

The bottom line is that the Supreme Court ruled that the United States government acted illegally and unconstitutionally in the way it has treated detainees at Guantanamo. So the question is no longer one of right or wrong but rather what to do about the mess we have made in Guantanamo.

This mess includes the fact that our government lied to us when they informed the American people that the prisoners at Guantanamo were “the worst of the worst.” The facts contained in the military’s own records simply do not bear that out. And it is clear, at least to this observer, that one of the main reasons the government insists on holding many of these detainees is not the fear that if released they would commit heinous acts of terror but rather because by releasing them now it would prove that the military made many, many tragic mistakes in capturing, interrogating, and holding dozens of innocent men and boys.

An exhaustive examination of the military’s “Combatant Status Review Tribunals” by two National Journal reporters last February revealed this shocking conclusion:

Many of them are not accused of hostilities against the United States or its allies. Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence—even the classified evidence—gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It’s based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.

Perhaps most shocking of all is that despite repeated assurances from Administration officials that the Guantanamo detainees were captured “on the battlefield” in Afghanistan, the facts contained in the military’s own records do not support that contention. In fact, it appears that many of the detainees were captured in Pakistan and were handed over to the Americans by:

“...reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability. These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on… including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over….”

How little effort has been made to establish claims of innocence? The Guardian features a story today about one Abdullah Mujahid who the government claims was plotting against the United States. Two years ago, the military invited Mr. Mujahid to prove his innocence by calling witnesses in his defense before a tribunal.

A few months later, the government informed Mujahid that the witnesses could not be found which meant that his incarceration would continue indefinitely. The newspaper however, found three of the witnesses within three days. One was working for President Karzai, advising him on tribal affairs. Another teaches at the National Defense University in Washington, D.C.

The Guantanamo records are replete with examples of such incompetence or deliberate malfeasance, depending on your point of view. And herein lies the root of the quagmire at Guantanamo; our inability to admit we were wrong about some of these people and work to redress the injustice.

Clearly, there are many detainees at Guantanamo who should never see the outside of prison bars again. And now that the Supreme Court has offered guidance on what to do with these terrorists – specifically asking the President to go to Congress to get the legal authority to try them – those of us who are interested in both justice and our nation’s security should wholeheartedly support this effort.

But what can we do to determine the status of hundreds of others whose incarceration is a blot on American jurisprudence and shames our constitution and our most cherished values? Clearly there must be procedures using our civilian courts to weed out the innocent from the dangerous. And Congress can also intervene here by developing guidelines in concert with the Justice Department and the Department of Defense to insure that justice is done and our national security is protected.

One of the major stumbling blocks is the fact that much of the evidence gathered against detainees is of a classified nature. And evidence gathered as a result of interrogation of other prisoners, if released in open court, could endanger the person who supplied that information. For this reason, detainees cannot enjoy all the rights afforded American citizens in similar circumstances. But they should have the right to an attorney, the right to a speedy review of their case, the right to an examination of the evidence by an impartial judge, and perhaps a limited right to face their accuser if possible.

At the very least, the above gives us a basis for action. Congress has been dithering about this issue for more than three years, passing the buck to the Department of Justice and the Defense Department. Now that the Supreme Court has cleared up some of the issues surrounding detainees at Guantanamo, Congress could indeed clear up most of the others by dealing with detainee rights in a forthright manner that could begin to repair some of the damage done to our reputation as a champion of human rights and the rule of law.

We will be at war with International jihadism for many years. Besides winning on the battlefield, it is absolutely essential that we also win the hearts and minds of the hundreds of millions of Muslims who reject the violence and nihilism of the extremists and really do wish to rid themselves of the terrorists. This won’t happen as long as some of our policies reveal us to be hypocrites and worse, little better than the governments that oppress them on a daily basis.

We simply must stand for something better, something that we can be proud of. But as long as our detainee policy continues to show us at our worst, it will be impossible for many to see us at our best.

Now that we’ve had nearly 24 hours to digest the Supreme Court’s Hamdan decision, here are a few points about it that are emerging both interesting and troubling.

First, it can generally be said that when it comes to interpreting what the Supreme Court has decided, both right and left see exactly what they want to see and ignore anything that doesn’t buttress their arguments that (left) Bush is a lying weasel who acted illegally or (right) that the Supreme Court has entered into a treaty with al Qaeda and we’re doomed! Doomed, I say!

As Allah points out in this sober analysis (well…at least the analysis was sober. I don’t know about Allah.), the decision has both an upside and a downside. First, he quotes this passage from Steven’s opinion:

We have assumed, as we must, that the allegations made in the Government’s charge against Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm and even death to innocent civilians, and who would act upon those beliefs if given the opportunity. It bears emphasizing that Hamdan does not challenge, and we do not today address, the Government’s power to detain him for the duration of active hostilities in order to prevent such harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

Allah tell us what this means:

If Bush dispensed with tribunals altogether and ordered the Gitmo gang held without trial for the duration of the WoT as prisoners of war, arguably that would be constitutional. As it is, if he wants tribunals, he has to go to Congress and get explicit approval. (Stevens says at the bottom of page 37 that if Congress wants to make special wartime exceptions to legal procedures, it has to be specific. The AUMF alone is too vague. Breyer’s two-paragraph concurrence on page 82 emphasizes the point.)

This is the good news. Even though they struck down the concept of tribunals, the Supremes are inviting the executive to go hat in hand to Congress and ask for that specific authority. And even if many Democrats don’t believe we’re at war, by acknowledging the right of the executive to hold the Gitmo detainees “until the end of hostilities,” the Supreme Court accepts that fact which makes lefties look pretty stupid as they praise a decision that, as they see it, establishes limits on the President authority.

I’m all for limiting the executive’s authority. But the question I have is did the Supremes use a hatchet where a scalpel was required? It seems pretty clear that, unlike many past decisions of the Court, Stevens wanted to broadly address many of the questions regarding executive power that the Bush Administration has raised with its actions. As Allah points out, this includes the NSA intercept program that apparently has had its legal underpinnings knocked off:

Think Progress notes, correctly, that the Court’s unwillingness to read implicit grants of executive power into the AUMF might mean the end of the NSA warrantless wiretapping program, which Gonzales has said is based on that very statute. The issue’s likely moot, though: Arlen Specter told Chris Wallace on Fox News Sunday that Bush was already leaning towards submitting the program to the FISA courts, and now that this has come down, his hand will probably be forced. I doubt Think Progress’s point will ever be adjudicated, and if it is, the case is likely to be decided on constitutional (read: Fourth Amendment) grounds, not the specificity of the AUMF.

Personally troubling to me is if Bush is willing to now use the FISA court to get warrants, why couldn’t he have done it before? The implied explanation was that it would have involved dozens, maybe hundreds of decisions by the FISA court which would have delayed monitoring considerably. Is there a “compromise” that Senator Specter has come up with that addresses that or has Bush simply caved on the entire warrant issue?

We don’t know the answer to this and I imagine that any compromise would lie in manipulating some of the technical details of the program – details that are still secret. But personal doubts aside, the fact that the Supreme Court has pretty much confirmed the Administration’s policies of holding detainees indefinitely, albeit as POW’s, should be seen as a huge plus. At least we won’t have to open the doors at Gitmo and let these guys walk. (I still would like to see a judicial review of many of these cases in that from what we’ve heard, not all of these men were captured on the battlefield in Afghanistan and some may be held without cause.)

The downside of this decision has to do with the Court arrogantly assuming powers and prerogatives reserved for the Congress and/or executive. Allah points to the Court’s citing the Geneva Convention, specifically this from Article 3:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

Allah slams the door:

Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. “But,” you say, “it says it applies only to conflicts ‘not of an international character’ and the war on terror is as international as they come.” Indeed — but the Court is reading “international” in its literal sense, i.e., “between nations.” Al Qaeda isn’t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, he’s entitled to the protections of Article 3.

Those protections include not being subjected to torture or, much more broadly, “humiliating or degrading treatment.” And even if al Qaeda could give a tinker’s damn about the Geneva Convention, the United States has been forced into complying with it by the Supreme Court:

Even if it’s not, it’s “degrading” and therefore, per subsection©, illegal. There’s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, we’re bound no matter how many heads AQ hacks off and irrespective of the fact that they’re not a High Contracting Party themselves. Amazing.

[snip]

But if you’re dealing with a political entity that’s explicitly transnational and that’s rejected the Conventions repeatedly by deed if not in word, why deem them included? Article 3 leaves you with the absurd paradox of affording more protection to Al Qaeda members caught inside a signatory country than to members of a hypothetical group that scrupulously follows the Conventions operating inside a nation that’s not a High Contracting Party.

In the end, as Allah rightly shows, the idea that the War on Terror is a law enforcement problem has apparently won the day – for the moment. What is truly depressing to me is that if we are ever hit with another 9/11, we will have to rehash these same arguments again, perhaps with even more controversy. As Justice Thomas states in his magnificent dissent:

We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspiring to reproduce the atrocities of September 11, 2001, and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismembered captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities like the bombing of the Khobar Towers, the bombing of the U. S. S. Cole, and the attacks of September 11—even if their plots are advanced to the very brink of fulfillment—our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists “redhanded,” ante, at 48, in the midst of the attack itself, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President’s ability to confront and defeat a new and deadly enemy.

Is the President, as Commander in Chief, hamstrung by this decision? Have some of his vital war powers been stripped as some on the right are saying?

I think its clear the Court wanted to make a statement about this Administration and its ever growing use of untrammelled executive power. Granted (and the President’s enemies will never do so), I believe a very good case can be made that Bush’s aggressive use of the powers of the executive may have staved off another attack during the last 5 years. But at what cost? I am not as cavalier in charging the Administration with overstepping the bounds of legality and constitutionality as most of those on the left seem to do, although I recognize and accept some of their arguments. The fact that I believe they do so to score cheap political points at the expense of our security sometimes angers me. Because this is a debate that needs to take place. If we are going to have both liberty and security, some kind of consensus must be achieved or we will get what we got yesterday from the Supreme Court; a bludgeoning of the executive at the possible expense of our ability to protect ourselves.

First and foremost, the left must acknowledge we are at war – like the Supreme Court did – and that some grant of executive authority must be vouchsafed the President in order for him to do his job. The war is not some gigantic political ploy that Karl Rove is using to win elections. The threat is real and immediate. And to date, I have yet to see even a hint from the netnuts and even many in Congress that this threat is taken seriously.

We are lectured that the war is more than a military campaign. We are also lectured that just about any effort we make in the law enforcement area is subject to so many pie-in-the-sky, impossible dream civil liberty absolutist nonsense that if the FBI looks sideways at a suspected terrorist, they scream for the President’s impeachment. In short, the left has yet to prove that it is serious about defending America. And until they can show the American people more than the simple, mindless criticism of anything and everything the President has done to prevent another 9/11, they will not win no matter how many Iraqs or deficits or Abramoffs or DeLays or Plames or earmarks the Republicans stumble and fumble with.

Whatever the long term consequences of this decision, in the short term I believe it has given heart to our enemies. Too bad I didn’t see that issue addressed by Stevens in his opinion.

As for the decision, I’ll let other more qualified writers explain it to you. These two posts at SCOTUS Blog are pretty clear.

One thing that Marty Lederman points out is that the Administration was wrong in their opinion that certain parts of the Geneva Convention did not apply to the treatment of detainees. Specifically, Article III and its strictures against physical torture as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.” I’m not exactly sure what this means but it seems to me that it could make Bush and Rumsfeld possible war criminals.

If the Court insists that the US government should be following the Geneva convention while all these years the Administration has been practicing interrogation techniques that are now deemed in violation of that Convention, doesn’t that leave the President and the Secretary of Defense liable for their decisions in this regard and make them vulnerable to to prosecution by the World Court?

I hope I’m reading that wrong and if someone could enlighten me, I would appreciate it. Because in the case of charges brought by the World Court (not the World Criminal Court that we are not a party to), I believe Congress would be required to turn any defendants living in this country over for trial. Again, I hope I’m wrong on this but as I see it, this could be a possibility.

All of this could have been avoided if the Administration had been able to get together with Congress and come up with a regime that would have granted detainees certain constitutional rights. Senator Specter held hearings almost exactly a year ago about the hodge-podge nature of detainee rights and how it was hampering justice. At that time, Specter offered to work with the President on the rights of prisoners and procedures for the military reviews that determined whether or not a detainee would face a tribunal. For a variety of reasons (some of them bureaucratic), the Administration refused.

Now the Supremes have forced them to go to Congress anyway. It may be that many of those detainees will now be “repatriated” back to prisons in their own lands and Guantanamo will be closed. No matter how we may think it necessary to hold many of these men, Guantanamo had become an icon over the last few years, a source of friction with our allies and a visible symbol to the Arab press of American “oppression.”

We would do well to rid ourselves of it.

UPDATE: 7/1

Andrew Sullivan asks the exact same question about Bush’s “war crimes” that I did. Maybe I’m not as crazy as I thought.

The fact is, I can see some Euro-lefties pressing the case before the World Court, preventing Bush from leaving the country after his term of office is over. And I wouldn’t put it past some in this country to agitate for handing him over.

But in the end, I suspect that nothing much will happen. There are so many genuine thugs that the Euro-left coddles and strokes that even they couldn’t act so shamelessly.

There’s a smile on the face of Tom DeLay this morning and much wailing and gnashing of teeth on the left as the Supreme Court ruled that most of the DeLay-inspired gerrymander of Texas congressional districts is constitutional:

The Supreme Court on Wednesday upheld most of the Republican-boosting Texas congressional map engineered by former House Majority Leader Tom DeLay but threw out part, saying some of the new boundaries failed to protect minority voting rights.

The fractured decision was a small victory for Democratic and minority groups who accused Republicans of an unconstitutional power grab in drawing boundaries that booted four Democratic incumbents from office.

Indeed, DeLay’s handiwork was a piece of political art. As I mentioned in this post, it brought to mind a similar piece of legerdemain by California Democratic Congressman Phil Burton back in the redistricting scrums of 1980:

The result of Burton’s machinations became clear in 1982. When Ronald Reagan was elected in 1980, there were 22 Democratic and 21 Republican Congressmen. In 1982, following Burton’s manipulation of the system, there were 28 Democrats and 17 Republicans in Congress. In 1984, Republicans won a majority of votes in Congressional districts but failed to gain a single seat thanks to Burton’s gerrymandering.

The map drawn up by Burton looked like he had given a monkey a crayon and allowed him to scribble on a map of the state. Burton’s own district featured so many twists and turns that the lines actually ended up splitting apartment buildings in two. There were lines drawn down the middle of streets so that one side was in Burton’s district and the other side given over to the Republicans. All of this legerdemain was necessitated by the changing nature of Burton’s district which had become gentrified and thus full of Republican voters. But it was made possible – like DeLay’s efforts in Texas – by the magic of computers and the science of demography.

To answer the argument that it’s perfectly alright to game the system in order to maximize one party or another’s political representation I would agree. This is exactly what DeLay was doing with his map by removing reliable Democratic voting blocs made up of blacks and Hispanics from Republican enclaves. The Supremes ruled that DeLay went too far but that his basic idea is perfectly legal and constitutional.

As a practical matter, this will mean jiggling a few district lines in order to more fully reflect minority concentrations of voters so that a candidate can potentially be elected based solely and exclusively on their ethnic background or race. Why this isn’t considered demeaning by minorities has always escaped me, especially since black and Hispanic representation would soar in Congress if, instead of concentrating a clear majority in one or two districts, minority candidates were recruited to run in races where there was a strong plurality of black or Hispanic voters. I think that the idea that whites won’t support a black or Hispanic candidate is almost dead. This won’t change the voting rights law or any SCOTUS decisions impacting redistricting. But it should be a reality taken into account by both parties so that more minority candidates can be elected.

Also of note is a part of the decision that may have huge ramifications down the road: The Court ruled that states may redraw district boundaries any time they wish rather than waiting for the Census report that comes out once a decade.

On a different matter, the court ruled 7-2 that state legislators may draw new maps as often as they like _ not just once a decade as Texas Democrats claimed. That means Democratic and Republican state lawmakers can push through new maps anytime there is a power shift at a state capital.

The Constitution says states must adjust their congressional district lines every 10 years to account for population shifts. In Texas the boundaries were redrawn twice after the 2000 census, first by a court, then by state lawmakers in a second round promoted by DeLay after Republicans took control.

That was acceptable, the justices said.

“We reject the statewide challenge to Texas redistricting as an unconstitutional political gerrymander,” Kennedy wrote.

This could be very troubling for our democracy. As it stands now, most people do not know who their Congressman is. What would happen if people were shuttled all over the map every couple of years as one party or another took control of the statehouse? I am willing to bet that number would decline even further.

Beyond that, this aspect of the decision presents some interesting possibilities. It would make getting and keeping a Congressional majority on not just winning national elections, but also predicated on doing well at the state level. Will this give more power to national political parties who have the money and resources to push for statehouse majorities in order to maximize their clout in Congress?

The declining power of political parties over the last quarter century has been well documented. It will be interesting to see if this stops that slide and indeed, turns it around somewhat. More powerful parties means more party discipline, something both parties could do with a little more of.

And what really must be killing the lefties today is that DeLay is getting the last laugh – at least until his trial. Regardless of how his legal troubles fall out, DeLay’s legacy to Republicans in Texas seems secure.

UPDATE

I guess I forgot to mention that this puts a monumental crimp in the Democrat’s plans to take over the House in November. Since most observers believe that even with the court ordered re-drawing of districts it is unlikely that the Republicans will lose any seats in Texas, the mountain that the Democrats must climb to take control of Congress just got that much steeper.

And given some curious poll numbers in key states that have come out recently, the much ballyhood momentum the Democrats were touting just a few short weeks ago, may be slowing to a crawl. The GOP is not out of the woods yet, not by a long shot. But they may have stopped the bleeding and even begun to reverse some very troubling trends.

I think we should start a grass roots movement to get Associate Justice Ruth Bader Ginsburg appointed to the World Court at The Hague. Judging from her remarks made at a conference in South Africa last month, she sure as hell doesn’t belong within 3000 miles of the Supreme Court building:

Supreme Court Justice Ruth Ginsburg gave a speech in South Africa last month, which, for some reason, is just now being publicized. Ginsburg’s speech was titled “A Decent Respect for the Opinions of [Human]kind.” In it, Ginsburg argued explicitly for the relevance of foreign law and court decisions to interpretation of the American Constitution. Ginsburg did not try to hide the partisan nature of this issue; at one point, she referred to “the perspective I share with four of my current colleagues,” and she specifically criticized Justice Antonin Scalia, Judge Richard Posner, and the two bills that were introduced in Congress in 2004 and were broadly supported by Republicans. And she indulged in an outrageous bit of demagoguery, suggesting that those who disagree with her are somehow aligned with Justice Taney’s infamous defense of slavery in the Dred Scott case.

Ginsburg contrasted our Constitution (unfavorably, I think it’s fair to say) with the Constitution of South Africa, which specifically provides for the use of foreign law in interpreting its provisions.

You really should read the entire speech, but its argument is most concisely stated here:

To a large extent, I believe, the critics in Congress and in the media misperceive how and why U.S. courts refer to foreign and international court decisions. We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”

Hinderaker offers a devastating critique of both the implications contained in Ginsburg’s words and the consequences of keeping this simpering internationalist on the court. Even if “foreign law” is not a “controlling authority,” what troubles me most is her notion that we can learn anything from other countries about “relationships between the governors and the governed.”

In America, that relationship is simple, straightforward, and proudly displayed right up front in our constitution, ostensibly so that even idiots like Ginsburg wouldn’t miss it:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

I know it to be rather old fashioned of me, but when our Basic Law says that the document is ordained and established for the United States of America, I believe we should like, you know, take the framers of it at their word.

Call me a fuddy-duddy but I also seem to recall something about those governors she speaks of deriving their legitimacy from the consent of the governed and not the other way around as it is in every other country on planet earth. That would seem to put the kibosh on Ginsburg and her fellow black-robed Gods using any legal principle promulgated in countries (or in any supranational legal body) that take a dim view of the governed having any rights except those defined by the governors.

I like this analogy by Hinderaker:

Take, for example, the issue of homosexual sodomy. The Supreme Court recently ruled, in Lawrence v. Texas, that there is a constitutional right to commit acts of homosexual sodomy. Was this ruling informed by reference to foreign jurisprudence? If not, why not? On Ginsburg’s approach, the justices apparently get to pick and choose when they will look abroad for guidance. And, if foreign guidance had been sought in the Lawrence case, would the justices have looked to the law in Muslim countries where commission of such acts is a capital crime? If not, why not? There is no coherent answer to these questions, and, needless to say, Ginsburg does not offer one. In reality, reference to foreign law is nothing more than an ad hoc tool to be invoked or ignored at will by justices who want to advance a left-wing agenda.

I’ve tried to be measured in this critique of Ginsburg’s speech, but the truth is that it is more reprehensible than I have suggested. You really have to read it to appreciate how far removed it is from American laws and traditions, and how demagogic it is in both tone and substance.

What is it about liberals that when they leave the country, they say such outrageous things? Is it simply a matter of pandering to anti-American sentiment that is so widespread among the intelligentsia worldwide? Or is it something more atavistic – perhaps a feeling deep down inside that they really don’t like America very much and wish that we were more like France or Holland or, as Ginsburg seems to be saying, South Africa?

What I do know is that Ruth Bader Ginsburg should not be deciding cases on our Supreme Court. She, and her fellow Justices who think as she does, must be prevented from allowing foreign law or precedent to influence their decisions in any way. By doing so, they drive a stake through the heart of the concept of American exceptionalism – that we consciously do things differently here because of who we are and what kind of people we see ourselves as.

Readers of this site know how often I bemoan the downgrading by the left of American exceptionalism, the natural rights of man, and the idea that there is a “higher law” that we are all answerable to (including members of the Supreme Court). The essence of these conceits is America. They define our history. They animate our present. They are the meat and potatoes of American society. They are so ingrained into our culture, our political system, and our everyday life that we barely notice them – until Justices like Ginsburg attack them. It is then that we realize how very precious these conceits are and how without them, we lose something so valuable that it diminishes the very idea that is America.

For what else is America but an idea? Our sovereignty is not defined by recognizable borders, or a King, or any standard measure other countries would use. Our sovereignty is bound up in our Constitution which is the purest expression of how we see ourselves. And when the Ginsburgs of the world attack the ideas that define us by saying that we should take cues on how to live from foreign lands, I say enough. It should be the other way around. Foreign governments could learn a hell of a lot about freedom from copying what goes on here and not the other way around.

Paul Mirengoff believes that a case could be made for impeaching Justice Ginsburg (although he also believes it will never happen). Let us hope that President Bush gets at least one more opportunity over the next 2 1/2 years to name at least one more conservative justice to marginalize and diminish the influence of this wicked woman.

UPDATE

Michelle Malkin reminds us that Ginsburg napped through recent oral arguments made at the Supreme Court. Maybe she should be sent to the Hague. I understand the Judges got plenty of rest when trying Milosevic for his unspeakable crimes against humanity.

Displaying a contempt for democracy not often seen on the pages of a major American newspaper, the New York Times today is asking the Senate to reject the nomination of Judge Samuel Alito for Associate Justice of the Supreme Court not because he is a bad judge or a bad man but because he is a conservative.

And not just a conservative, but a “radical” conservative – a scurrilous charge that the Times makes no effort to prove or justify. Instead, they fall back on the tired old, cliche- ridden leftist cants that have been used by liberals to soil the good name of conservatives since the days of Barry Goldwater:

If Judge Samuel Alito Jr.’s confirmation hearings lacked drama, apart from his wife’s bizarrely over-covered crying jag, it is because they confirmed the obvious. Judge Alito is exactly the kind of legal thinker President Bush wants on the Supreme Court. He has a radically broad view of the president’s power, and a radically narrow view of Congress’s power. He has long argued that the Constitution does not protect abortion rights. He wants to reduce the rights and liberties of ordinary Americans, and has a history of tilting the scales of justice against the little guy.

As senators prepare to vote on the nomination, they should ask themselves only one question: will replacing Sandra Day O’Connor with Judge Alito be a step forward for the nation, or a step backward? Instead of Justice O’Connor’s pragmatic centrism, which has kept American law on a steady and well-respected path, Judge Alito is likely to bring a movement conservative’s approach to his role and to the Constitution.

To all but the most willfully self deluded, the idea that Judge Alito will ” reduce the rights and liberties of ordinary Americans” and tilt the scales of justice “against the little guy” is a total fiction. The Times must have called upon the individual who writes the horoscope column for the paper in order to come up with that kind of preternatural nonsense. What the Times is really objecting to is not Alito’s temperament or his knowledge of the law – both rational reasons to oppose a judicial nominee – but rather that he would apply the law as it was intended not as he would wish it or because of some blithering twaddle about the mythical “little guy” getting the shaft.

Judge Alito has consistently shown a bias in favor of those in power over those who need the law to protect them. Women, racial minorities, the elderly and workers who come to court seeking justice should expect little sympathy. In the same flat bureaucratic tones he used at the hearings, he is likely to insist that the law can do nothing for them.

Who does the New York Times think represents those “little people” they believe are going to be trod upon by the evil Alito? Are they talking about the lone, heroic “worker” fighting the grasping corporation by asking the court to uphold workers’ rights? Or are they talking about the AFL-CIO who is pretty good at the grasping for power game themselves and who contribute a couple of hundred million dollars in hard and soft money during an election cycle to liberal politicians?

Some little guy.

The certainty with which the Times looks into its crystal ball in order to find Judge Alito wanting is breathtaking. They have “no doubt” that Alito would change “the court’s approach” by advocating the “unitary executive theory” that the Times calls “fringe.” Here’s what the Times means by talking about a unitary executive. It’s from a question posed by Ted Kennedy during Alito’s confirmation hearings:

Our questions in this hearing is: What is your view of the unitary presidency?

You’ve responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.

And it includes these words: “that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.”

Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

It is certainly a novel legal view that “Administrative agencies in the areas of policy making” – i.e., cabinet departments – are under the control of Congress. They are, of course, agencies controlled by the executive branch – unless you are Ted Kennedy or the New York Times. Then they are simply part of the permanent bureaucracy in Washington and as such, a wholly owned subsidiary of the left and the Democratic party. Here’s John Hinderaker:

As we have repeatedly noted, one of the fundamental problems faced by any Republican administration is the entrenched hostility of the federal bureaucracy, which is overwhelmingly Democratic. During President Bush’s five years in office, this hostility has most critically been manifested by the CIA and the State Department, elements of both of which have worked actively to undermine American foreign policy. If the President were able actually to control the federal bureaucracy, as the Constitution contemplates, it would indeed effect a major change in the balance of power in Washington—not, in principle, between Congress and the executive, but between Democrats and their allies in the bureaucracy, and elected Republican Presidents.

The Times also believes it is “likely” that Alito was chosen for “his extremist views on Presidential power.” This also requires a crystal ball to believe. Paul Mirengoff:

The major theme seems to be that Alito will be the tool of a power-hungry, imperial president. The problem is that there’s no evidence of this in his rulings—apparently he hasn’t ruled on any big-ticket questions relating to the president’s war power or the war on terrorism (ironically, John Roberts, with a much shorter judicial tenure, had). Once Alito agrees with Justice O’Connor that war does not provide the president with a blank check, and salutes Justice Jackson’s analysis of the relationship between presidential and congressional power, where do the Dems go?

The answer Mr. Mirengoff is that they just make it up. Since they don’t have a clue about what Alito’s attitude toward the NSA intercept program would be, they believe feigning certitude is enough for the ever dwindling number of subscribers who bother to read what they say about anything.

In the end, the Times reveals its real reason for opposing Alito. They don’t think that national elections should matter:

The real risk for senators lies not in opposing Judge Alito, but in voting for him. If the far right takes over the Supreme Court, American law and life could change dramatically. If that happens, many senators who voted for Judge Alito will no doubt come to regret that they did not insist that Justice O’Connor’s seat be filled with someone who shared her cautious, centrist approach to the law.

Quick! Someone tell the editors at the New York Times that we had an election more than a year ago and that a liberal didn’t win nor did a “centrist.” A conservative won the Presidential election of 2004, one who promised to appoint conservative judges if he were re-elected. He didn’t promise to appoint centrists or women or minorities or anyone the New York Times could remotely approve. President Bush ran on a platform and repeated constantly that if given the opportunity, he would appoint conservative judges to the Supreme Court.

This is what sticks in the craw of the Times’ editors. The people of the United States elected George Bush because he is a conservative. And the Times thinks that overarching fact should not matter. It bespeaks a contempt for the very concept of democracy that more and more, the editors of the New York Times are having a hard time in hiding.

UPDATE

Ed Morrissey and I are on the same wavelength this morning:

If ideology is to be considered, then the New York Times has it even more wrong. It asks whether a conservative should replace a centrist on the court. If ideology has suddenly become a qualifier, then one has to look at who nominates the candidate. The President won election twice, and at least during the last election, Supreme Court nominations clearly were a major issue. He has the mandate of the election to pick the ideological bent of the replacements for any opening on the Court; there is no quota system for leftists, centrists, and conservatives, nor have Presidents been particularly apt at guessing which categories their nominees would fill in the long run anyway. Bush’s two elections show that the people want a more conservative court—so as long as the Times considers ideology a basis for selection, then a conservative judge should be the most acceptable as a manifestation of the demand of the people.

Amen.

UPDATE II

Maybe Karl Rove is sending all of us conservatives invisible thought waves so that we all think alike. Those pithy pachyderms from Elephants in Academia also think the Times needs a remedial class in civics:

Furthermore, I wasn’t aware that the confirmation process for a supreme court justice was some sort of popularity contest. Good lord, are these people in high school? The President won his election and the Republican congresspeople who hold the majority in the legislature won their respective elections, and it is indeed up to them to nominate justices and then vote on them. The number of dinner invitations that Judge Alito receives from the editors of the New York Times is an irrelevant indicator of how they should vote.

Yep.

Also, Patterico links to a Bench Memo takedown of the Times and points out that they misspelled Lincoln Chafee’s name.

What. A. Crew.

It really was never much of a contest.

For three days, Democratic Senators flailed about wildly looking for all the world like blindfolded children trying to smack a pinata, so elusive and more intelligent was their putative quarry. In the end, they only managed to hit themselves on the noggin while the nominee walked away laughing after getting all the candy.

The confirmation hearings for Samuel Alito to be Associate Justice of the Supreme Court may have proven that liberalism has lost its fighting edge. And the reason is that it is no longer politically viable to try and tar and feather conservatives with the appellation of “racist” or “sexist” simply because someone disagrees with the public policy prescriptions of liberal interest groups like the NAACP or NOW. We may very well have moved beyond the point where a nominee who differs with liberals on affirmative action and abortion can be casually smeared with those epithets simply because they have a different point of view, one that is supported if not by a majority of Americans then certainly by a healthy minority.

It used to be easy for the left. A little twisting of the facts here, a hint of “insensitivity” there, and before you knew it, their reliable allies in the media would fill in the blanks and present the nominee as a closet bigot. Since at least the confirmation hearings for Justice Rehnquist in 1971, conservatives have had to endure the shameless pandering of Democrats to minority interest groups, energizing them to oppose nominees because confirmation would mean “rolling back the hard won gains of the civil rights movement” or “the women’s rights movement” or “the environmental movement” or any other “movement” the Democrats could put the fear of God into by raising the specter of a conservative on the court.

No more. If this week proved anything, it is that the left can no longer hurl scurrilous charges that a conservative is a dishonorable mugwump simply because they are a person of the right and then have the public swallow the smear hook, line, and sinker. These days, the people demand a little more proof than Ted Kennedy darkly hinting that Concerned Alumni for Princeton is actually a haven for closet Kluxers.

That’s not to say the liberals on the Committee didn’t try their best. Ed Morrissey points to this exchange between Senator Shumer and Judge Alito where the preening Senator from New York attempted to prove that Alito is a cad because he doesn’t stand up for “the little guy:”

SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.

In the first case, you said to that retarded individual, “Sorry, you’re out of luck.” In the second case, you said to the government, “I’ll make your argument for you.” And that doesn’t seem even handed to me.

ALITO: What I’m talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.

And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don’t raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.

As Morrissey points out, the relevant statute was voted on by Shumer and the fact that he either didn’t remember or didn’t understand the ramifications of what he was voting on only shows the Senator from New York to be as clueless as a day old marmoset.

The point is that this line of attack used to work like a charm for liberals. But the rise of alternative media such as blogs and talk radio means that they can no longer get away with it.

Even the New York Times was having trouble trying to get the smear machine going:

In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.

But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court’s two most conservative members, Justices Antonin Scalia and Clarence Thomas.

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.

“In interpreting the Constitution,” Judge Alito said Wednesday, “I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.”

I daresay that this view of the constitution is hardly out of the mainstream and the Times knows it. If there one thing that Americans are generally sick of when it comes to the judicial branch of government, it is the belief that judges constantly overstep their authority. This simple statement of Constitutional fidelity enjoys much more support among the broad public than the out of touch liberals on the Judiciary Committee realize.

In the end, it is they who are out of the mainstream, not Judge Alito.

This has been one of the more revealing confirmation hearings in memory not for what the nominee has said but for highlighting how the tactics of the left in opposing conservatives have failed utterly. It remains to be seen whether or not Democrats will pay a price at the polls for their underhanded tactics. I tend to think not as few beyond the beltway were watching these hearings. But if the failure of their tactics means anything, it is further proof that the tired, wretched line of attack that liberals have engaged in for more than a quarter of a century against conservatives may finally have outlived its political usefulness.

What a wonderful thing for our democracy that the Democrats sitting on the Judiciary Committee questioning Judge Alito are nothing if not consistent – as in consistently boorish.

I realize that in tearing down society, liberals have had to attack the very idea of good manners and what they represent. The conventions that place strictures on impolite or rude behavior had to be destroyed if liberals were ever going to get anywhere politically. Hence, shouting down people you disagree with or throwing a pie in a conservative’s face is considered heroic rather than the act of a barbarous lout. Just think how different our political climate would be today if every time we turned around liberals weren’t calling conservatives “racists” for disagreeing with some nonsensical public policy position taken by the NAACP or “Nazi” for…well, being a conservative, I guess.

There are very good reasons for saying “please” and “thank you” not to mention all the societal conventions that most of us learned as we grew up. Politeness, empathy (for individual human beings, not just “protected” political groups), deference to age and gender, as well as the formalized dance of words and gestures that occurs when two strangers meet are all means to grease the wheels of intercourse. Without them, misunderstandings would very quickly degenerate into conflict, a state of affairs not conducive to the smooth running of society not to mention the health and safety of its individual members.

The performance of many Senate Democrats on the Judiciary Committee during the Alito confirmation hearings has been a shocking display of self-aggrandizing, mean-spirited, boorish and ill mannered behavior not seen since the impeachment hearings during the Clinton era. Then it was some Republican Congressmen who were so desperate to advance their cause that they allowed loutish behavior to substitute for reasoned discourse. In the case of Senate Democrats, they don’t even have the excuse that they are arguing weighty issues vital to the republic. Instead, their attacks have centered on peripheral matters like Alito’s membership in the conservative Concerned Alumni of Princeton (CAP) which, depending on what you read, either was for “excluding” women and minorities or “limiting” their enrollment at the prestigious Ivy League university.

Either way, one wonders why if the Democrats are so concerned about Alito’s nominal membership in a group that sought to exclude minorities they haven’t taken their own Senate Leader Robert Byrd to task for belonging to an organization – the KKK - that sought to lynch them.

And if the Democrats are going to drag out 25 year old articles from The Prospect and (God help us!) the National Review maybe we should dig into some back issues of Ramparts or other lefty “alternative” news digests that called for the violent overthrow of the United States government. I daresay John Kerry would probably have a few anxious moments if someone threw that in his face.

Since the Democrats cannot attack Alito’s qualifications for Associate Justice, they are trying to browbeat the nominee by being as rude and overbearing as the rules permit. By calling into question his character, they are attacking the confirmation process itself. The more scurrilous and unprincipled charges they can cast about, the more headlines they get. Today’s media stories are not about anything Alito stands for or his impartiality but rather the baseless charges being tossed around by Ted Kennedy, Joe Biden, Charles Shumer and the rest of the Democratic attack dogs who have given up trying to defeat the nominee and instead now seek to undermine any legitimacy he has with the American people.

The tactic worked quite well with Justice Clarence Thomas who to this day causes many women to go into fits of anger at the very mention of his name. It remains to be seen how well it will work with the mild mannered and self effacing Alito who has proven himself much more the gentleman than his craven interlocutors.

It is perhaps horribly old fashioned to use the words “gentlemen” and “Senator” in the same sentence. After all, being a gentleman used to mean exhibiting a certain reserve, a deference to all, low born and high. There was a responsibility to show respect for another’s point of view and empathy for another’s feelings that many of these Senate Democrats have refused to acknowledge. Yes politics is a contact sport. And if this was a hearing for a new Defense Secretary or Attorney General, some of the behavior exhibited by opposition Senators could be if not excused, at least understood in the context of political combat.

But judges should be, if nothing else, above politics. Do what you wish with the actual confirmation vote in the Senate. Play politics all you want when politics is called for. But when trying to ascertain the qualifications and temperament of a Supreme Court nominee, politics should be left behind. With a few notable exceptions (not surprisingly, with liberals shattering precedent in the Bork and Thomas hearings) confirmation hearings have been pro forma affairs where even opposition Senators were constrained from attacking a nominee’s character. The Ruth Bader Ginsburg hearing was a good example as Republican Senators tried without much success to get Ms. Bader-Ginsburg to reveal just how liberal she really was. To the country’s detriment, we didn’t find out until she was confirmed.

There is no such problem with Alito. With more than 300 written decisions to look at, the record is clear. He is a conservative through and through. And the fact that the Democrats seem more than a little perturbed that Judge Alito would not be against revisiting Roe v. Wade or that he actually believes we are presently at war and that a somewhat more expansive view of executive power may be justified – with proper oversight – only reveals the opposition for what they are; a pack of boorish louts.

There is no doubt that Judge Alito will receive a majority of votes from the Judiciary Committee and be sent to the floor where he will almost certainly be confirmed with ease. The question then becomes what the Democrats on the Committee hope to accomplish with their mud slinging. The answer lies with their rabid base who demands blood on the floor. Like spoiled, rotten children, the denizens of the far left fever swamps are throwing a tantrum because they can’t defeat the Alito nomination. Failing that, they are demanding that the committee Democrats tarnish the image and good name of the judge.

It’s all they have left to look forward to in this fight. And if it means attacking the character of a good and decent man to the point that his wife weeps in gratitude when a Republican Senator defends him, then so be it.

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 WASHINGTON POST

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 WASHINGTON TIMES

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.

LOS ANGELES TIMES

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 NEW YORK TIMES

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.