The Risks of Rejecting Alito

Much has been written about the possibility of the “nuclear option” in battling an attempted filibuster of a Supreme Court nomination by Senate Democrats i.e. the banning of the practice altogether. Risk of losing that tool isn’t the only risk that Democrats will be running if Alito is not confirmed.

Over the course of last week’s confirmation hearings Senate Democrats tried, without much effect, to characterize Alito as a dangerous radical whose conservative ideology would injure the liberty interests of all Americans by his extra-Constitutional decisions. Unfortunately for their case, their wasn’t much in Alito’s actual record as a judge to support the claim. What that record did support, as testified by the representatives of the American Bar Association and colleagues both Democrat and Republican was of a careful, prudent jurist of impeccable personal decency who decided cases within the confines of precedent and the law. That’s not the stuff of radicalism.

What the Democrats on the Judiciary Committee did succeed in doing was in painting themselves as partisans more concerned that the outcomes of cases furthered their agenda than in the qualifications, temperament, or record of the nominee or in deference to the choice of the President or, indeed, the Law itself. That’s not a particularly appealing picture and could injure Democratic prospects at the margins in national elections.

The problem here is that, although many of these same men were on the Senate Judiciary Committee when Robert Bork was nominated for the Court, they’ve apparently forgotten that Bork was not rejected merely because of what he might do but because of what he had done and written and, manifestly, because he lacked the temperance that’s referred to as “judicial temperament”.

The same is not the case with Samuel Alito who equally clearly has a judicial temperament and has no record of extreme rulings or writings. If Alito is rejected it will be simply be on the basis that any candidate who suits the requirements of this president and the people who elected him is unacceptable. That rejection of deference to the nominations of the sitting president could result in problems in the future confirmations of future nominations of future Democratic presidents.

Alito’s failure to answer so many of the questions the Senators asked him doesn’t bother me; until recently it was considered unseemly for a Supreme Court nominee to appear before the Senate at all.

In their editorial today in The Washington Post the editors write:

Judge Alito’s record is complicated, and one can therefore argue against imputing to him any of these tendencies. Yet he is undeniably a conservative whose presence on the Supreme Court is likely to produce more conservative results than we would like to see.

Which is, of course, just what President Bush promised concerning his judicial appointments. A Supreme Court nomination isn’t a forum to refight a presidential election. The president’s choice is due deference — the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.

And Judge Alito is superbly qualified. His record on the bench is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn’t reach for the political outcomes he desires. His colleagues of all stripes speak highly of him. His integrity, notwithstanding efforts to smear him, remains unimpeached.

These are sufficient reasons for approval of the nomination. Democrats should be more wary of painting themselves into an ideological corner by a too-strident rejection of Alito.

Others writing on this topic today include Joe Gandelman, Don Surber, and Orin Kerr. See also Daily Kos and Pamela Leavey for discussions of New York Times and Boston Globe editorials, respectively, which oppose the nomination.

UPDATE: Ann Althouse comments in a similar vein.

ANOTHER UPDATE: The Philadelphia Inquirer has also come out for Alito’s confirmation:

Alito, a member of the Philadelphia-based Third Circuit Court of Appeals, demonstrated during three days of questioning last week by the Senate Judiciary Committee that he does not bring a precast agenda to the job.

He does bring a cast of mind that causes some legitimate concern. But Alito showed he has the experience, modest temperament, reverence for the law, and mastery of his profession needed to serve on the high court.

A common complaint about confirmations has been that nominees stonewall the committee. Alito tried to answer nearly every question put to him. Democratic senators may not have liked his responses, but Alito dodged very few questions.

This endorsement is not enthusiastic. Alito is a more conservative nominee than anyone concerned with the nation’s drift toward excessive executive power and disdain for civil liberties would prefer.

But the Supreme Court should not be stocked with justices all of the same political persuasion, left or right. As the replacement for a valuable centrist, Sandra Day O’Connor, Alito might very well move the court perceptibly to the right. But his methodical, just-the-facts approach to the law does not portend a shocking shift, and would not justify a filibuster of his nomination.

1 comment… add one
  • Ron Link

    It is certainly true that Alito is qualified, and his nomination hearings and debates are not appropriate places to refight the 2004 presidential election. But you must look behind the scenes at the backers of the Democratic Party. Kos, DU, Moveon.org, Soros, Howard Dean, Michael Moore, Ramsey Clark, etc. Rationality does not enter into their deliberations. Ideology trumps everything else in the mind of the leftists who control the DP and DNC.

    A filibuster is exactly what these things desire, and if not for a vague sense of self preservation in the democratic politicians that they control, a filibuster would be perpetrated. The politicians themselves are open to ridicule and repercussions that the propagandists like Moore, Kos, moveon etc. which the financiers like Soros and Heinz-Kerry can easily ignore.

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