Since my last column two weeks ago, President Bush nominated Judge Samuel Alito to the Supreme Court to replace the retiring Sandra Day O'Connor, touching off heated debate and apocalyptic political rhetoric from coast to coast. Not all dialogue is so pessimistic; one campus publication featured a segment comparing Alito unfavorably with burritos and mosquitoes. Why conservatives remain stereotyped as intellectually immature is beyond me.
In the Senate, however, such levity is noticeably absent. Many Democratic Senators, including Patrick Leahy, Barbara Boxer and colorful figure Ted Kennedy accused President Bush of trying to divide the country with this nomination. Harry Reid lamented the fact that Alito was not from a diverse background, regardless of the fact that Alito is a Catholic of Italian descent and for all intents and purposes more "diverse" than Senator Reid.
All this rhetoric portends a momentous showdown in the Senate early next year. Boxer admitted that "the filibuster's on the table." However, every argument put forth by the Democratic opposition seems facile and ill-founded. Unlike previous nominee Harriet Miers, Alito is more than qualified to hold a seat on the Supreme Court, having served under two presidents before taking his current seat on the U.S. Court of Appeals for the Third Circuit. So questions of qualification should be moot, unlike in the debate over the Miers nomination.
Thus we come to a possible second objection -- namely, that Alito is a right-wing radical, which would somehow make him unsuitable for service on the court. When was this standard implemented? After Justice Antonin Scalia, a conservative darling and my personal favorite, was confirmed 98 to 0 in 1986? Since Alito himself was confirmed unanimously for his current seat in 1990? Maybe it was after Reid said Scalia would be a suitable chief justice -- which was last December. Simply because Alito is no William Brennan does not mean he cannot serve; the argument is too arbitrary.
I suppose some Democrats agree that ideological leanings were not a disqualifying trait, because some have resorted to the argument that Alito's nomination is void because it would disrupt the ideological balance of the court. This argument perfectly illustrates why Republicans place such a premium on strict constructionism: such a "rule" is nowhere to be found in American law or tradition, yet it has come to be common intellectual currency among the left.
Franklin Roosevelt nominated nine justices and completely reshaped the ideological balance from a conservative-leaning to a solid New Dealer majority. "Slick Willy" Clinton nominated former ACLU counsel Ruth Bader Ginsberg in 1993. She was not replacing an outgoing liberal, but rather Byron "Whizzer" White, a conservative who dissented, along with the late William Rehnquist, on Roe v. Wade. Ginsberg was also confirmed 96 to 3.
What is especially important to note about Ginsburg's confirmation vote is the fact that Kennedy, Leahy, Joe Biden, Herb Kohl, Dianne Feinstein and Russ Feingold all voted for Ginsburg despite the noticeable shift in the ideological composition of the court, because those six senators are among the Democratic membership of the Senate Judiciary Committee. Having had no problem shifting a seat leftward, they should be wary of charging that it is unacceptable for a seat to shift the other way, unless they have no qualms about such brazen hypocrisy.
The last major complaint coming from the left is that President Bush did not consult with Democratic leadership prior to the nomination of Alito. Bush did consult Reid before nominating Miers, who was ripped as an unqualified crony by left and right alike. Leahy even commented that he and Republican Arlen Specter found Miers' answers to questionnaires "inadequate," "insufficient" and even "insulting." Not exactly the results one expects when seeking expert advice from both sides of the aisle.
The simple truth concerning Samuel Alito's nomination is that, despite his qualifications and the lack of a substantive, coherent basis for opposition to his confirmation, such opposition will inevitably arise. Because no one can attack his credentials, the Democratic opposition is left with the option of trying to sink his nomination via petty politicking. All too often, opponents have forgotten that the second half of senatorial duty in regard to presidential appointments is consent, and consent must be established if no legitimate reason not to consent is found. In this instance, I think it appropriate to quote Woodrow Wilson, a Democrat: "The Senate must take its medicine." Well said.
