Monday, January 09, 2006

On Alito

The Alito confirmation hearings commenced today with THREE hours of mind-numbing opening statements from Senators. Professor Ken Kersch at Princeton makes a good case for confirmation in OpinionJournal today.

The press informed readers that they were about to witness "one of the bitterest contests ever waged against a presidential nominee," and the most controversial Supreme Court nomination ever. The president, it was said, might have selected a nominee who would unite the country, not divide it. Instead, the Washington Post reported, he had "sent a bomb to the United States Senate."

Support and opposition split immediately along party lines. Opponents insisted that the most exacting scrutiny was essential, calling for delays. Supporters, citing the nominee's demonstrable capabilities, demanded expedition. A filibuster was threatened. All acknowledged the nominee was brilliant, almost all agreed he was honest. Neither trait, his antagonists reminded the country, entitled him to a seat on the Supreme Court.

Much was at stake. Justices called upon to decide cases involving some of the most controversial legal questions of the day were expected to be impartial. But the New York Times complained that, if confirmed, the nominee "would take his seat upon the bench equipped with a variety of preconceived and firmly-held notions." That wasn't the only red flag: The prospective justice, it was said, held views far outside the mainstream, and harbored a transparent commitment to an agenda that would revolutionize American law.

Lifted from the pages of today's papers? Actually they are about Wilson's nominee, Louis Brandeis, now a nearly sainted progressive Justice. Kersch's point is that Brandeis represented Wilson's progressivism and whose views dovetailed with those of his nominator. Not coincidentally, his views went the same way as that of the American body politic, who, well, had elected Woodrow Wilson.

Of course, the "biases"--or, put otherwise, the particular framework through which he views the constitutional and legal world--are the very reason that Wilson chose Brandeis for the court, and President Bush chose Judge Alito: Each president viewed that framework as the most appropriate one for resolving the era's most importunate constitutional questions, and, not incidentally, for correcting the "mistakes" of law, now precedent, made by earlier courts. If anything, it is much less clear that Judge Alito would act aggressively to impose his "biases" and overrule precedent. Unlike Brandeis, an activist lawyer, Judge Alito, though a movement supporter, is a long-serving federal judge and by all accounts a temperamentally cautious and judicious man. Brandeis, in contrast, was a movement visionary, famous for his passion and audacity.

In the same way, Alito's views may dovetail with those of George W. Bush who was elected and was re-elected by an electorate that supports him. And an electorate that has voted in a 55 Republican Senators. Brandeis got a vote and so should Alito.

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