Narrow-minded Criticism

by Mike Heslin | 11/17/05 6:00am

Iden Sinai '07's recent op-ed ("Opposition to Alito is unfounded," Nov. 10) carelessly dismisses any opposition to President Bush's latest nominee to the Supreme Court, Judge Samuel Alito, without making any actual attempt to understand it.

Calling arguments from the left "facile and ill-founded," Sinai first attacks critics for calling Alito unqualified for the Supreme Court. In fact, everyone on the left, from The New York Times op-ed page to Senator Ted Kennedy, has reiterated that qualifications are not the issue with Alito, as they were in part with Harriet Miers. In his press release on the issue, Kennedy even called Alito "clearly intelligent and experienced on the bench." Arguments saying Alito is unqualified certainly would be facile and ill-founded, but in the real world, that straw man does not exist.

Sinai continues, next dismissing those who take issue with the potential for Alito to be a right-wing ideologue, sardonically wondering why this would, if it were the case, "somehow make him unsuitable for service on the court." The fact is, a radical conservative on the Supreme Court would be detrimental to our nation, as would a radical liberal. A justice who is radical would be both inclined to legislate from the bench and out of touch with the mainstream views of the people whom all of his or her decisions affect in truly significant ways. Sure, Supreme Court justices are not directly responsible or representative of the people of our country. But the senators who must vote to confirm them are.

Still, Alito has not been accused by liberals of being such a dangerously radical person. No one, Republican or Democrat, who does not personally know Alito, can know yet whether or not he is an extreme conservative. That is why we have the Senate hearing process to confirm Supreme Court justices. Naturally, given some of Bush's past appointments, there are some concerns, but as Kennedy's statement goes on to say, "this is only the beginning of our inquiry."

Indeed it is, and given that this is only the beginning, it is unclear why Sinai takes issue with Senator Barbara Boxer's statement that "the filibuster is on the table." Why shouldn't it be? After the so-called "Gang of 14," a group of moderate senators from both parties, blocked a right-wing attempt to end the filibuster altogether via the "nuclear option" last spring, they agreed that the filibuster would only be used in "extraordinary circumstances." As we do not yet know whether Alito will prove to be an extreme case, it would be premature to take the filibuster off of the table now, and downright immature to attempt to do so in a threatening manner, as did Gang of 14 member Lindsey Graham, saying that "the filibuster will not stand," if used in the case of Alito.

Sinai's next issue is with those who are upset about Alito fundamentally altering the ideological balance of the court if confirmed. Now, no one is saying that we cannot have a conservative justice. Frankly, it is Bush's prerogative to nominate conservatives to the court, as we saw with the recent nomination and confirmation of Chief Justice John Roberts. But that does not change the fact that the federal government in a democratic society should in some way reflect the mainstream views of its people. Whether or not it is written verbatim in the Constitution, I think few would disagree that the Supreme Court should remain fair and balanced -- and not in the Fox News sense of the terms.

Now, to address the "premium" that Sinai and other Republicans so proudly place on "strict constructionism." One thing the Constitution does make very clear is that the president is to choose his nominees, "with the advice and consent of the Senate." Bush did consult with senators from both parties before nominating Harriet Miers, a rare and admirable flash of the phantom "uniter-not-a-divider" mentality that was unfortunately, if not unexpectedly, short-lived. When choosing Alito, however, the president failed to consult with Democratic senators for reasons still unclear. Why this particular clause of the Constitution is only occasionally applicable for the "strict constructionist" conservatives is beyond me. Regardless, Sinai seems to imply that the president's failure to nominate a qualified candidate the first time around in Miers was somehow the result, or the fault, of his consultations with the Democrats. This notion is entirely ridiculous; the nomination was still the choice of the president, and when giving his reasons for choosing Miers, bi-partisan support was far down the list.

Reasons much higher on that list were issues of diversity, both gender- and career-based. When nominating Miers, Bush remarked, "I've come to agree with the late Chief Justice William Rehnquist, who wrote about the importance of having judges who are drawn from a wide diversity of professional backgrounds." At a press conference the next day, the president patted himself on the back for reaching outside the "judicial monastery" with his nomination of Miers. It is curious, then, that a few short weeks later Bush abandoned these notions of diversity, finding instead a nominee with exactly the same judicial background as his potential future colleagues, who also happens to be a white male and a Catholic. And while Sinai seems to believe that Alito's Roman Catholic background makes him, "more diverse than [Senate Minority Leader Harry] Reid," if confirmed, Alito would be the fifth Catholic on the current Supreme Court, and the irony gods would smile on Bush's "judicial monastery" sound bite. Without debating whether one old white guy can be more diverse than another, a nominee who is part of a group that sits on a majority of Supreme Court benches hardly adds diversity.

It is these myriad instances of hypocrisy with which Democrats take the greatest issue. Frankly, it is tiresome to repeatedly hear one thing in conservative rhetoric and see another in practice. Make no mistake, Democrats want what is best for this country, and they will fight for it. If the Senate hearings reveal that Alito is the best candidate out there for Supreme Court justice, he will no doubt be swiftly confirmed, as was John Roberts. But if the freedom of American citizens is at stake, Senate Democrats must do the responsible thing and fight to protect it.

Perhaps conservatives will no longer be "stereotyped as intellectually immature" when they stop acting intellectually immature, and begin reacting to criticism with constructive conversation rather than thoughtless dismissal.