January 10, 2006

Activists have tried to turn the confirmation hearings "into surrogate presidential campaigns"...

Writes Dan Balz in the WaPo, but it's hard to stir the public up these days about a Supreme Court nominee:
[A]ll the rhetoric has done little to polarize the public, even in an age in which sharp divisions are common. Not surprisingly, Republicans are generally united in favor of Alito's confirmation, according to a new Washington Post-ABC News poll. More notable, given the possibility of a near party-line vote in the Senate, is that rank-and-file Democrats are almost evenly divided. The poll found that 40 percent of Democrats said Alito should be confirmed, while 39 percent said he should not. Self-identified liberals were almost as divided, with 38 percent saying they favor his confirmation and 44 percent saying they do not, with the rest undecided.
I wonder what accounts for such placidity amoung Democrats. Are they tired of the usual rhetoric about how conservative judges mean to take away our rights? Do they buy the conservative presentation of the judges as humble interpreters of the law? Or are they just practical and resigned when they see that the President has the appointment power and a majority of the Senators?

Of course, some people -- not Democrats, generally -- did get stirred up about the Harriet Miers nomination but that wasn't at the confirmation hearings stage, and that involved the gaffe of picking someone who lacked qualifications.

50 comments:

Pogo said...

The anti-Alito rhetoric wants to paint him as someone who will force women, minorities, gays, small children, and puppies (yes, puppies!) to return to The Dark Times of Obeisance to the Patriarchy.

But if even the Democrats are split about him, might not one conclude that people are learning to ignore such hysterics?

I still remember Ted kennedy's claims that confirming Bork would initiate The End of Times. And I believed it then. But you can only cry out "Armageddon!" so many times before people start ignoring you, or wanting to put quarters in your cup.

Goesh said...

It's probably a combination of the factors, knowing the Repubs have the votes, knowing he has 15 years on the bench and not gone beserk. Some people probably think he looks like a Judge should look. Many are simply not interested. Many see it as business as usual, that the common man is not going to attain economic paradise no matter who is on the bench. It's hard to root a seated Judge off the bench. I see it in the rural areas all the time with the lower, state Courts. Judges get elected and tend to the Law in a reasonable manner, they send a few crooks up the river and handle routine affairs and everybody knows there is a winner and a loser. Unless they go crazy, they tend to stay for a while for the most part. What do you say about a Judge in an election that has not gone crazy or been busted to get him/her rooted out? Nothing. One thing in Sam's favor in the court of public opinion is that he is not a geezer, feeble and fumbling and hobbling around. We wouldn't like that and with 15 years under his belt, I suspect the court of public opinion feels he can step up a notch and do a satisfactory job.

Mark Daniels said...

My theory is that the paucity of activism at the grassroots, really in both ideological camps, when it comes to the Alito nomination is that folks have made a simple recognition: Republican presidents nominate jurists broadly sympathetic to their views of the Constitution and the law and Democratic presidents do the same thing. And why shouldn't they?

The key to getting the Court you want isn't in villainizing nominees during Confirmation hearings. (After awhile, the constant resorting to that begins to sound like "the boy who cried wolf," anyway.) The key to getting the Court you want is winning elections. Period.

Unless judicial nominees espouse some ideologies of hate, are corrupt, or have a consistent record of demonstrable contempt for the Constitution or the rule of law and so long as they meet the requirements for judges and display a "judicial temperament," they should be confirmed...irrespective of partisan ties.

Mark Daniels

Murph said...

Since the Nixon presidency there have only been two Supreme Court justices appointed by a democratic president. Nearly 37-years later Roe is intact, civil rights legislation is largely the same and little has changed for most Americans.

The overheated rhetoric of the left is falling on deaf ears because the blogsphere and the new media have finally asked the scaremongers’ “where’s the beef?”

Even Ted Kennedy’s bought and paid for smear against Alito has backfired. The Chicago law professor who did the “review” of his opinions concluded that while his writings are conservative they are also well reasoned, respectful and within the boundaries of judicial reason. I doubt Senator Kennedy will share that information with his benefactors.

Ordinary people do not get overly excited because the court, for all its importance to our Republic, is the one branch of government most people see as a singularly curious institution. The presidency and the Congress we understand, the high court less so if only because its work is so idiosyncratic and cerebral.

Senator Schumer, Kennedy and the rest of the left will use Alito as a fund raising tool to extract money from the NOW/PFAW/ACLU camps, wink and smile that they will do everything in their power to stop his nomination – then when the money is collected, the klieg light go out they will vote 55-45 to confirm. There will be no filibuster because the democrats know it’s not only pointless – it would be political suicide.

Murph

The Drill SGT said...

Murph,

I think you correct in your general assessment, but I hope to god that there are enough fair minded Dems to make it 70-30 and I think it's a sad statement that th vote isn't 90-10 for what, to me and the ABA, is a very well qualified, well prepared nominee.

The Drill SGT said...

As an aside, these hearing are a foregone issue. Alito is going to do well and several Dem Senators are going to make fools of themselves. Again. Ann may have said it earlier, or some other blogger I read or maybe one of the talking heads:

"When a well prepared judge or law professor is grilled by a Senator on his knowledge of the constitution, we know 2 things.

1. One of them will be doing the lecturing.
2. One of them will end up looking like a fool."

It's really no contest, between a professional and an amateur.

Lance Burri said...

I hope those numbers show that people understand the idea behind nominations and confirmations.

The President is supposed to get his (or her!) nominee, unless it can be shown that nominee is unqualified in some way. Whether they are liberal or conservative isn't supposed to matter.

I would hope we would see an even larger proportion of Republicans supporting a Democrat president's nominee.

Henry said...

I wonder if there's a Roberts effect at work. The coverage of Roberts, post-confirmation, has been very positive, very warm and fuzzy. SCOTUS hums with congeniality. The Justices are cracking jokes. The pre-confirmation attacks on Roberts now seem dated and pathetic.

And so Alito's hearings begin in Roberts' warm and fuzzy slipstream. People aren't in the mood for a lot of downer negativity. Riling up the base just takes more energy at the moment.

If Alito was coming up for confirmation a year from now, after, perhaps, an important SCOTUS decision or two, then the anti-Alito forces could start building a narrative -- "first Roberts, then this..."

But you can't say "first Roberts," now. That just reminds everyone what jolly smart judges Bush likes to nominate.

bassett said...

A funny quote from yesterday, I think:

"No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law."

So: are people just hanging out in a legal ether? We just float about in it, like babies in amniotic fluid, in the warm womb of liberty and justice?

And no, I'm not pulling for any abortion commentary.

(PS--long time lurker, first time poster.)

37921 said...

That just reminds everyone what jolly smart judges Bush likes to nominate.

Assuming everyone has forgotten about Harriet Meiers.

Huecu: a small mammal indigenous to the forests of Peru.

Pogo said...

Looks like Leahy has just made the first thrust (more of a slash, really):

"Leahy asked the unsmiling Alito how he could have joined Concerned Alumni of Princeton -- a conservative group know to be opposed to increasing the number of women attending the Ivy League school. Alito said he had no recollection of being a member of an organization that both Senate Majority Leader Bill Frist (R-Tenn.) and former Sen. Bill Bradley condemned. Finding the answer incredulous, Leahy questioned how Alito could forget being a part of an organization he so prominently listed on a 1985 job applications"

Pastor_Jeff said...

"And so Alito's hearings begin in Roberts' warm and fuzzy slipstream."

Henry - I think this is another key point. Roberts handled himself well and has gotten favorable coverage. That encourages people that Bush hasn't nominated some hack or villain. Roberts' success has defused a lot of suspicion.

But think how different this would all be if they gone through with the Miers nomination!

David said...

Basset; nicely put! That "Ether" you remarked about is the realm of ethics, values, and doing the right thing when faced with a moral dilemma.

That is the realm most of us inhabit as we manage to avoid the judicial system.

I also believe that a majority of people see the hypocrisy of Senator Kennedy preaching morality to a potential SCOTUS-Roberts and Alioto. When the lights go out in the Kennedy house I wonder what Chappaquidic demons come out from under is bed.

Also, calling on Alioto to explain his actions that occurred some 30 years ago is ridiculous. We all grow with experience and wisdom. Would most of the senators want to walk back down that road themselves?

RogerA said...

I am not quite sure that everyone has forgotten about Miers--Senator Biden yesterday talked about all the questions they wanted her to answer--I couldnt tell if he thought she had been in the confirmation process--Similarly Kennedy talking about the Goldwater presidency--And we are talking here about the world's greatest deliberative body with the Grand Kleagle himself as the conscious of the Senate. Gag

RogerA said...

oops--preview is for the faint of heart--please substitute the correct spelling conscience of the state of being aware.

David said...

Rogera, I think you were correct the first time.

I watch Kennedy who can't follow the timing clock and ends up with 2 more minutes to complete his random statement that may or may not include a question. Then he calls his critics "scurrilous dogs" when they laugh at his obvious recantation of the talking points written out by his supporters.

Yes, was he conscious or not? He left his conscience in a tide pool on Martha's Vineyard.

Old Dad said...

Perhaps, it's because the Senate Judiciary Committee is chock a block full of buffoons.

Alito will be confirmed. Who in their right mind would care what Teddy Kennedy or Joe Biden thinks about anything, let alone Judge Alito?

Meade said...

Watch the video at that WaPo link if you want to see a credible performance of Patrick Leahy channeling Joe McCarthy.

David said...

...and that 'dear old dad' is the real story. Alito will be approved and the democrats will still be struggling with the problem of who is going to be the face of their party?

By the way, I remind myself that Hilary criticizing body armor for the troops is the same Hilary who would not allow the military to wear their uniforms in the White House!

"chock-a-block" and "buffoons" right there in your living room! Funny stuff!

sonicfrog said...

I just listened to Biden "ask" Alito questions. I now know that Biden's son went to U of Penn, Biden went to U of Delaware, had heard of the CAP, and really, really likes to talk. Alito never got the chance to answer the questions because Biden was too busy talking about himself.

Troy said...

My personal favorite is hearing uncle Ted talk about "the little guy". I love to hear a fat drunk trust fund raised, no-tipping, manslaughtering idiot preach. In my darker moments (for which I do repent) I think there must be an extra hot place in Hell for Oswald and Sirhan Sirhan for taking the wrong Kennedys.

Then I put such thoughts out of my head because I'm not Michael Moore, Harry Belafonte, or Ted kennedy wishing ill upon my opponents.

Pogo said...
This comment has been removed by a blog administrator.
Pogo said...

I would be more than pleased to be "asked" a "question" by Joe Biden. They eat up valuable time (the run-up for one was just short of 12 minutes), leaving little room in which to say something stupid.

But his smarmy wolf-smile does make me want to slap him upside th' head like his momma shoulda done long 'back.

W.V. ~ sxjxe:
The emoticon for clueless, as in "in one ear and out the other".
"Blotto" (i.e. Ted Kennnedy) is just xjx alone.

Icepick said...

Pogo wrote: W.V. ~ sxjxe:
The emoticon for clueless, as in "in one ear and out the other".


Sxjxe? I thought she was in a band: Sxjxe and the Banshees or something....

bassett said...

Pogo:

You can't hit Biden in the head. All the hairplugs would fall out. Then? Bald Biden. That's not good.

(I hate myself--that slap at Biden was awful. But so was Kyl's "why do you want to be a Supreme Court Justice" gag. Alito shoulda said that he wasn't terribly busy, and that Philly was boring. Just to throw everybody off.)

Jacques Cuze said...

Ha Ha! Presidential Assassinations, Hairplugs, killing politicians you don't like. You guys are teh funnay!

What a great and sophisticated blog! I was looking for LGF, but am very glad I stumbled into this one.

Ya know, I hate those partisan blogs like Artios' where the commenters just say disgusting things. It makes Artios look like such a partisan himself, and he really should police his commentariat!

Pogo said...
This comment has been removed by a blog administrator.
Pogo said...

Mrs. quxxo,

It has always puzzled me why some leftists seem to belong to a Puritan sect, eschewing all levity . They make reference to the underlying seriosity of it all, wearing the Art School Black, and listening to the Cure.

I dunno, ma'am, but this is all pretty tame stuff. I mean, come on. The Alito hearings are extremely dull. Can't we all just mock somebody?

Aspasia M. said...

Pogo wrote:

"It has always puzzled me why some leftists seem to belong to a Puritan sect, eschewing all levity . They make reference to the underlying seriosity of it all, wearing the Art School Black, and listening to the Cure."

Heh. I find this statement a bit ironic considering the thread in which several baby-boomer commenters on this blog testified to their "hippie" days in which they attended art school.

Meanwhile my left-leaning non-hippie parents had attended Ohio State a few years earlier. They never got drunk, never did drugs and they were both virgins when they married.

A few years later (late 1960s) my "leftist" father enlisted in the army.

I am positive they both never, ever listened to the Cure.

I'm glad, though, that you "right leaning" baby boomers had a great time in the late 1960s and early 1970s wearing hippie clothing, dodging the draft, and attending art school.

Palladian said...

Pogo- Don't knock Puritans. The difference between baleful leftists and Puritans is that Puritans had a coherent philosophy. And then there's the whole morality thing...

What thread wouldn't be complete without quxxo injecting some bilious comments or pasting 10,000 words from a Truthout column? It's like that dash of bitters in a Sazerac cocktail- a gentle reminder of all the bad things about life.

Pogo said...

Re: "I'm glad, though, that you "right leaning" baby boomers had a great time in the late 1960s and early 1970s wearing hippie clothing, dodging the draft, and attending art school."

Well, Geoduck, while Alito may have been just 14 during the 'Goldwater presidency', I was a pre-teen in the early 70s.

I never got to wear tie dye, or burn my draft card, or attend a protest, or nothin'. Man. And in the late 70s, I hated disco, so punk music was my trip. I was very left-leaning then, until I graduated and went out into the real world and read on my own. Goodbye, sweet left, we hardly knew ye.

And pray tell, what makes your father "leftist", and why the use of quotes?

RogerA said...

Palladian--wonderful comment--and I was NOT aware than anyone still drank Sazeracs any more--as I recall, chilled glass, swirled with pernod, and filled with bourbon with a dash of bitters? Named for a new orleans hotel? Very old school :)

Adam S. A. said...

People don't care...until the court does something that affects their lives. Then you will see people caring. Most average Americans can't fathom the impact of a 'pro-business' court on their lives yet. Maybe they won't have to, but I suspect they will.

AJ Lynch said...

Troy said:
"My personal favorite is hearing uncle Ted talk about "the little guy". I love to hear a fat drunk trust fund raised, no-tipping, manslaughtering idiot preach."

Bravo. Very well put- when will some of these pompous ancient senators just go home.

BTW, I had not known Teddy was a lousy tipper? There is nothing worse that that - speaking as one who pulled in many generous tips tending the taps when I was a lad.

RogerA said...

I for one WOULD like to see Alito comment on the Kelo decision--if there was ever a decision that negated our right to property, that has to be one of the most egregious--and wasnt that a Sandra Day O'Conner 5-4?

I DO hope that Alito is not a SDO'C clone--we wont have anything left.

Jacques Cuze said...

Oh, I don't think he is a Sandra Day O'Connor. As Jon Turley says,
As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.
Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito's cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito's bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.


You guys need to start swiftboating Professor Turley.

vnjagvet said...

QX:

Last time I checked, Professor Turley, like me, hasn't been elected Senator and, like me, doesn't have a vote.

I like Professor Turley. I merely disagree with him on this issue.

I do not believe his judgment on a nominee is any better than mine is. BTW, what makes you think he has a corner on judgment on this issue that is better than, for example, Alito's colleagues on the Third Circuit?

Aspasia M. said...

Pogo said:

"Well, Geoduck, while Alito may have been just 14 during the 'Goldwater presidency', I was a pre-teen in the early 70s..."

Hmmm. So Alito would have been 19 in 1969. I wonder if he enlisted? Maybe he met my father in the army!

Pogo said..
"And pray tell, what makes your father "leftist"

Political philosphy and his voting record. Perhaps you believe that "leftists" are defined by musical tate and clothing style?

Coco said...

"BTW, what makes you think he has a corner on judgment on this issue that is better than, for example, Alito's colleagues on the Third Circuit? "

I have no idea whether Prof. Turley's judgment is better than yours, but Alito's 3rd Cir. colleagues can't realistically be expected to be anything other than supportive

vnjagvet said...

Coco:

It is unprecedented for so many bench colleagues of a nominee to testify in his favor.

Bruce Hayden said...

Then again, maybe Judge Alito's 3rd Circuit cohorts want to get rid of him. After all, they have lifetime appointments, and how else do you do it?

Just playing devil's advocate there. I expect that they really do think that he would do a good job.

wv: zipws (IBM's ZipWebServer)

Henry said...

Alito joined ROTC in 1969/1970, commissioned as a 2nd lieutenant in 1972, and completed his service after graduating from law school in 1975. I'm just paraphrasing the Washington Post.

* * *

It's pretty hard to take Turley's opinion-piece seriously. He cherry-picks a few cases, interprets them in their worst light, conflates Alito's job-related advocacy as Assistant Soliciter General with Alito's personal views, and flings us this dog's breakfast in a gaseous bag of moral certitude.

Thanks anyway.

ChrisO said...

"The pre-confirmation attacks on Roberts now seem dated and pathetic." Wow, so I guess Roberts is an unqualified success. I can't wait until he actually writes a significant opinion. The frickin' clocks will probably stop. I'm not saying there's anything wrong with Roberts so far, but don't you think it's a bit soon to declare him a success?

"Since the Nixon presidency there have only been two Supreme Court justices appointed by a democratic president. Nearly 37-years later Roe is intact, civil rights legislation is largely the same and little has changed for most Americans."

Gee, I would have thought the possibility of having a different President for the last five years would actually be viewed by most American as a rather significant change.

So I'm to understand that questioning a nominee about his past rulings and judicial phiolosophy before providing him with a lifetime appointment to the Supreme Court is "hysterics?" Just what should the advise and consent part of the process look like in your eyes?

And I freely admit that many of the questions are overlong and even ridiculous. That doesn't mean that Senators should abdicate their right and duty to question a nominee. It's not as if the Democrats have suddenly introduced bloviating to the US Senate. Let me introduce you to Sen. Ted Stevens, for starters.

Henry said...

chriso, reread what I wrote. Alito's hearings are right now -- not a year from now. Right now, Roberts has been receiving a lot of positive press. I'm not talking about anything other than media fluff, but the fluff cycle, right now, is good for Alito.

Goatwhacker said...

And I freely admit that many of the questions are overlong and even ridiculous. That doesn't mean that Senators should abdicate their right and duty to question a nominee.

By asking overly long and ridiculous questions they are simultaneously abdicating their duty to advise and consent. The process has turned into a soapbox for Senators rather than a device to discern the suitability of the candidate. I agree with you that pontification is by no means confined to Democrats - I would remark that it is undesirable no matter who is doing it.

Eli Blake said...

Ann, your 'comments' section is not working on your 'what is going on?' post, so I will post this here:

Many, perhaps most of you are now criminals due to a little known provison slipped by Republicans (James Sensenbrenner in particular) into Violence Against Women and D.O.J. Reauthorization Act and signed by President Bush last Thursday.

Link right here.

The specific provision reads,

"Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

Now, I post under my name, so I don't have to worry about this law. Neither would Ann. But most of you don't (I assume, anyway unless those are your real names over there).

According to this law, if you attack someone in a blog post (be it another poster or a public figure) enough to 'annoy' them (unless you post under your real name or otherwise identify yourself), you could conceivably go to prison for two years.

With any luck at all, this law will be struck down as unconstitutional, but with people like Sam Alito deciding the case, I don't think I can assume that.

Funny how some people will undoubtedly continue to claim that President Bush and the Republican Congress are the greatest thing on earth when they will continue to erode the freedoms of these people one little fleck at a time.

Pogo said...

Eli,

Not to worry. Conservative Supreme Court judges follow the Constitution, not goofball anti-constitutional legislation like this. In contrast, those served by the 9th circuit have alot to be concerned with.

P.S. to Geoduck: Your father entering the army and being "leftist" do not make sense. If you actually meant he was a Democrat, that's different. And you didn't explain your use of scare quotes around the word "leftist." Irony? Belittling? Error?

Henry said...

Eli

Orin Kerr and Eugene Volokh are all over this story. Start here and work backword. The most cogent and persuasive explanation I've heard is Cal Lanier's explanation that all this law does is cover VOIP.

ChrisO said...

Henry Woodbury

You said "The pre-confirmation attacks on Roberts now seem dated and pathetic." That doesn't sound like "so far, so good" to me. It sounds more like "case closed." You pretty much declared that opposition to Roberts has been proven to be "pathetic." My point remains: the fact that justices are making jokes hardly makes previous opposition to Roberts "pathetic." Basically what we have to go on is that he handled himself well during confirmation. That hardly makes him a successful CJ.

Again, I'm not saying he won't be. But your post smacked of the triumphalist "Mission Accomplished" tone I hear so much from Republicans.

Henry said...

Chriso

Do you know what the word "seem" means?

Frankly I thought the attacks on Roberts were pathetic at the time. Now they seem dated and pathetic. But I think I was pretty clear in my comment above in observing that things could seem quite different a year from now, once some actual Roberts decisions come down.

Remember the common wisdom was that with two sequential conservative nominees the hearings would turn into cage matches. Once Roberts sailed through, the common wisdom was that all the pressure would be on the next nominee, especially if that nominee were conservative.

So Alito is clearly a conservative. Where's the pressure? That's the question.