A great George Will on the upcoming battle

[Kilmer17]

http://www.realclearpolitics.com/Commentary/com-11_1_05_GW.html

November 1, 2005

Let the Great Debate Begin

By George Will

WASHINGTON -- With the nomination of Samuel Alito, the nation's long-term needs and the president's immediate needs converge.

Our nation properly takes its political bearings, always, from the Constitution, properly construed on the basis of deep immersion in the intellectual ferment of the Founding Era that produced it. That is why our democracy inescapably functions under some degree of judicial supervision. The nation has long needed a serious debate about the proper nature of that supervision. And the president needed both a chance to demonstrate his seriousness and an occasion to challenge his Democratic critics to demonstrate theirs in a momentous battle on terrain of his choosing. The Alito nomination begins that debate.

When Churchill's wife said it was perhaps a blessing in disguise that British voters turned him out of office even before the war in the Pacific ended, he growled that, if so, it was very well disguised. President Bush must realize that the failure of the Harriet Miers nomination was such a blessing.

He quickly cauterized that self-inflicted wound and acted on this political axiom: If you don't like the news, make some of your own. Presidents are uniquely able to do this, and Bush, because of his statesmanlike termination of the Miers nomination, was poised to reorient the national conversation. And because of the glittering credentials that earned Alito unanimous Senate confirmation to the 3rd U.S. Circuit Court of Appeals, those Democrats who are determined to oppose him are unhappily required to make one of two intellectually disreputable arguments.

One is so politically as well as intellectually untenable that they will try not to make it explicitly. It is that judicial conservatism may once have been a legitimate persuasion, but now is a disqualification for service on the Supreme Court.

To which there is a refuting question: Since when? Since 1986, when 98 senators -- including 47 Democrats -- voted to confirm Antonin Scalia 98-0? Since last December, when Harry Reid, leader of Senate Democrats, said that Scalia would be a fine nominee for chief justice?

Reid doubtless would respond that Scalia would have been acceptable only because he was replacing someone comparably conservative -- William Rehnquist. Which brings us to the second disreputable argument Democrats will be reduced to making: Because Alito is more of a judicial conservative than was Sandra Day O'Connor, he is unacceptable because it is unacceptable to change the court's intellectual balance. This argument is triply flawed.

First, nowhere is that rule written. Second, the history of presidential practice -- Democrats should especially study FDR's sweeping alteration of the court's composition -- refutes the rule. Third, when in 1993 the Senate voted to confirm the very liberal Ruth Bader Ginsburg, former counsel to the American Civil Liberties Union, to the seat being vacated by the retirement of the conservative Byron White, 96 senators voted for her, including 25 Democrats still serving in the Senate. Including Reid. Including Pat Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Herbert Kohl and Russ Feingold, all members of today's Judiciary Committee.

Reid urged the president to nominate Miers, whose withdrawal Reid says he laments. Now Reid deplores the Alito nomination because it was, Reid says, done without Democratic ``consultation.'' But it was during such consultation that, Reid says, he warned the president not to nominate Alito. So Reid's logic is that nothing counts as consultation unless it results in conformity to Democratic dictates.

When Reid endorsed Scalia for chief justice, he said: ``I disagree with many of the results that he arrives at, but his reason for arriving at those results are (sic) very hard to dispute.'' There you have, starkly and ingenuously confessed, the judicial philosophy -- if it can be dignified as such -- of Reid and like-minded Democrats: Regardless of constitutional reasoning that can be annoyingly hard to refute, we care only about results. How many thoughtful Democrats will wish to take their stand where Reid has planted that flag?

This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes -- ``results" -- they, like the result-oriented senators who confirm them, consider desirable? If so, in what sense does the Constitution still constitute the nation?

This is a debate the president, who needs a victory, should relish. Will it, as Democrats mournfully say, ``divide" the country? Yes. Debates about serious subjects do that. The real reason those Democrats are mournful is that they correctly suspect they are on the losing side of the divide.

[Ignatius J.]

I think this piece is a bit intelectually dishonest. Democrats will fight the nomination because they don't think he is going to make the decisions that are in the best interests of the country. And it is good for them to fight over that issue.

Origionalism has a nice ring to it, but you cannot claim that any of these judges are truly origionalist. In the end every judge will rule according to what they believe is right, within the available constraints of the law. I think arguments which try to claim that there is only one way to interpret consitutional law are disingenuous at best.

[Kilmer17]

Oh please. Dems are going to fight him because of his ideology.

[@DCGoldPants]

and what will he do differently than Ms. Miers?

[Kilmer17]

be qualified?

[Ignatius J.]

that's exactly right kilmer. My point is simply that they SHOULD fight him based on his ideology. I think his ideology is bad for the country. I think that someone with a different ideology would be better. The part that is dishonest is that he is sitting there claiming ideology is not important. Ideology is everything.

(well that and being qualified)

[Kilmer17]

It's a shame the right didnt apply that standard when Ginsberg was appointed.

[Ignatius J.]

Whatever Kilmer, I honestly don't care how things were done before. I think fighting for what you believe in is always honorable. And if the attacks don't resort to stupid lies about this guys past which have nothing to do with his job, then I can't say that a fight is a bad thing.

We need real debate in this country. Let's have one.

[Kilmer17]

Of course you dont, your guys were in charge then.

[Ignatius J.]

???

I think republicans should fight for what they want to. Are you trying to say I'm being hypocritical now?

(nevermind the fact that when my guys were in charge I was really one of your guys)

I can turn your question around. Why didn't the republicans want the best justices on the court? Did they just not care? That seems silly. They should have fought for the beliefs of thier constituents.

I honestly don't know why your buddies rolled over on ginsberg. I don't know any of the history.

[Kilmer17]

The history is simple. The GOP agreed that she was qualified INSPITE of her ideology. That's been the standard used forever.

If it's going to change to ideology, that's fine with me as well. I just wish the GOP had done this.

[Ignatius J.]

me too, actually.

[wskin44]

I think that Alito will be confirmed. The Dems can express their dissatisfaction, and maybe have to for political reasons, but the Republicans won the election. As long as the man is sincere, has integrity and has knowledge and talent to understand and debate the Constitutional issues of our times, then he should be approved.

The Court is going to become more conservative. It was determined on election day last November. Get over it.

[Predicto]

The history is simple. The GOP agreed that she was qualified INSPITE of her ideology. That's been the standard used forever.

Yep. Just like Scalia's hearing. Just like our new Chief Justice Roberts.

Everyone is assuming that the Democrats are going to pull out all the stops to block Alito, no matter what, but there is no evidence for it.

[Kilmer17]

Yep. Just like Scalia's hearing. Just like our new Chief Justice Roberts.

Everyone is assuming that the Democrats are going to pull out all the stops to block Alito, no matter what, but there is no evidence for it.

There is plenty of evidence that they are talking about it.

Schumer, Kennedy, Boxer. All have come out with damning statements about how extreme he is, Boxer (I think it was her) said that a Filibuster might be in the cards.

Now they havent done anything YET, but it's been clear since yesterday how the far left of the Dem party feels about him.

Whether they think they have enough support from the moderates to act on their dislike is another story.

[wskin44]

The dems have to make noise for the benefit of their base. That's all that's going on. This nominee will be approved.

[Kilmer17]

The dems have to make noise for the benefit of their base. That's all that's going on. This nominee will be approved.

I agree.

I just hope they make it a good fight.

[DjTj]

The history is simple. The GOP agreed that she was qualified INSPITE of her ideology. That's been the standard used forever.

If it's going to change to ideology, that's fine with me as well. I just wish the GOP had done this.

I don't think the history is so simple, and it has never been simple. Abe Fortas and Robert Bork learned the hard way - it is about politics. I think the Founders were well aware that whn they gave the Senate the responsibility to advise and consent, that the decision would be partly political.

Ginsburg, despite her history at the ACLU, was not a radical by any means on the D.C. Circuit. She joined with Scalia and Bork on many decisions and has always been relatively conservative on criminal rights and free speech. I tried to dig up an old newspaper article about her hearings, and here is the liberal media making the same complaint that conservatives are likely to make in the next few weeks:

The Washington Post: Friday, July 23, 1993

SECTION: OPINION EDITORIAL; PAGE A22

HEADLINE: Litmus Tests

WHEN PRESIDENT Clinton nominated Judge Ruth Bader Ginsburg to the Supreme Court, it was possible to assume that the complexity of her views would make it hard for the senators confirming her to apply simple litmus tests to her thinking. But the hearings so far suggest that old habits die hard. Sen. Orrin Hatch wanted to know whether Judge Ginsburg considered the death penalty constitutional. Judge Ginsburg declined to say, having taken the position that while she would be glad to discuss her past writings, she did not want to get into an issue about which she has written nothing -- and on which she would have to decide many cases. Mr. Hatch was not pleased. "It appears that your willingness to discuss the established principles of constitutional law may depend somewhat on whether your answer might solicit a favorable response from the committee," he suggested.

We have been here before. Democrats could barely contain themselves in pointing out that when the court nominees of Republican presidents -- notably, Justices David Souter and Clarence Thomas -- were before the Judiciary Committee, the Republicans vigorously defended their right not to answer questions on cases that might come before them.

Even after Mr. Hatch accepted Judge Ginsburg's response, committee Chairman Joe Biden could not resist reminding the Utah Republican that during then-Judge Souter's confirmation hearings, Mr. Hatch had urged the nominee to "stand your ground" in refusing to give "answers which you clearly cannot provide." Back then, Mr. Hatch had warned against the Senate's imposing "indirect litmus tests on specific issues or cases" and said that excessive senatorial probing "politicizes the judging function."

It's nice that senators keep old transcripts at the ready to remind each other of how yesterday's positions of principle can get tossed by the wayside in the interests of today's political imperatives. Mr. Biden graciously acknowledged that he might not like to have all of his earlier statements read back to him.

Senators are clearly a long way from having any consistent set of principles about what they will -- or won't -- ask a potential Supreme Court nominee. Judge Ginsburg looks set to sail through the Senate, which is good. But the truce she has allowed the Senate Judiciary Committee to enjoy seems well short of a lasting peace.

[Kilmer17]

Fortas was a crook, opposed by a bipartisan group concerned about his financial shenanigans.

Bork was the first Scotus Judge voted down strictly on ideology.

The same case-specific argument that the Dems used to support Ginsberg can be found to support Alito. That doesnt change the fact that she's an extreme Liberal or that he's a Conservative.

[BlueTalon]

Whatever Kilmer, I honestly don't care how things were done before. I think fighting for what you believe in is always honorable. And if the attacks don't resort to stupid lies about this guys past which have nothing to do with his job, then I can't say that a fight is a bad thing.

We need real debate in this country. Let's have one.

That (attacks using stupid lies) has become the liberal modus operendi. They did it with Bork, and they did it with Thomas.

I don't know that they'll do it with Alito. They didn't do it with Roberts, I think because they were intimidated. He was clearly more inteligent than any Democrats in the room, and then when the NYT started looking into his adopted kids (the most likely avenue for a stupid-lie attack), the national response of disgust and revulsion took them aback.

If Alito presents himself as well as Roberts did, it will again be no contest. Liberals can blather all they want right now about a filibuster, but it's not going to happen.

[Guest Gichin13]

The history is simple. The GOP agreed that she was qualified INSPITE of her ideology. That's been the standard used forever.

If it's going to change to ideology, that's fine with me as well. I just wish the GOP had done this.

That is actually where Will's slight of hand is in the article. Ginsburg was not even the most liberal judge on the DC circuit when she was appointed. Folks see ACLU and they assume life wing radical ... she certainly is left of the Repub nominees, but was not the lunatic fringe in her own circuit as an appellate judge.

[BlueTalon]

That is actually where Will's slight of hand is in the article. Ginsburg was not even the most liberal judge on the DC circuit when she was appointed. Folks see ACLU and they assume life wing radical ... she certainly is left of the Repub nominees, but was not the lunatic fringe in her own circuit as an appellate judge.

If that's true, it doesn't mean she's not a left wing radical -- it just means that others on the DC circuit court are wackier than she is. Which wouldn't surprise me a bit.

[chomerics]

If that's true, it doesn't mean she's not a left wing radical -- it just means that others on the DC circuit court are wackier than she is. Which wouldn't surprise me a bit.

Did you read any ofe her cases while on the DC Circuit concerning personal rights? Do you know what her votes were? The mere fact that you claim the entire DC Circuit court is a bunch of "wacky leftists" really exhibits your true position. You don't like her because of her ideology, but she was far far more mainstream then you give her credit for. Read some of her decisions on the DC circuit and then come back for a debate.

[chomerics]

That is actually where Will's slight of hand is in the article. Ginsburg was not even the most liberal judge on the DC circuit when she was appointed. Folks see ACLU and they assume life wing radical ... she certainly is left of the Repub nominees, but was not the lunatic fringe in her own circuit as an appellate judge.

Exactly Gitchen, great post.

[DjTj]

Fortas was a crook, opposed by a bipartisan group concerned about his financial shenanigans.

Bork was the first Scotus Judge voted down strictly on ideology.

The same case-specific argument that the Dems used to support Ginsberg can be found to support Alito. That doesnt change the fact that she's an extreme Liberal or that he's a Conservative.

I think "extreme Liberal" is a bit of a strech, especially in the context of the Supreme Court. She certainly has not been an extreme liberal justice in the mold of William Brennan, and she is certainly more conservative than Thurgood Marshall, Earl Warren, Lewis Powell, or Abe Fortas. Meanwhile, Thomas, Scalia, and Alito would be the most conservative Justices in the past 50 years. In a historical context, Alito is more "extreme" than Ginsburg.

Bork was certainly not the first Supreme Court nominee voted down strictly on ideology.

When George Washington nominated John Rutledge as Chief Justice in 1795, the Senate rejected him 14-12 because he had denounced the Jay Treaty. Roger Taney was rejected in 1835 for opposing a national bank. When James Polk nominated George Woodward in 1845, the Senate rejected him because of his nativist views. When Grant nominated Ebenezer Hoar in 1869, the Senate rejected him because he had opposed Andrew Johnson's impeachment. In 1881, Stanley Hayes was rejected because he was too closely associated with railroad interests. Pierce Butler's nomination in 1922 failed for the same suspected pro-corporate bias. When Herbert Hoover nominated John J. Parker in 1930, the NAACP successfully lobbied against his confirmation. Johnson of course had trouble with Fortas in 1968, and partly as retribution for this and partly because of a spotty record on Civil Rights, Clement F. Haynesworth was not confirmed in 1969. Another one of Nixon's appointments, G. Harrold Carswell, was opposed for his civil rights record in 1970.

This has always been about ideology, from George Washington on down to George W. Bush. If the founders had intended that ideology be irrelevant, Supreme Court Justices would likely be chosen by a panel of judges. We purposefully created our system so that judges would be appointed and confirmed by politicians. It is a political process and as such there have been many great ideological battles throughout our history played out in confirmation hearings. There's nothing new happenning here - it's just politics as usual ... it's what makes our democracy great.