Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.This is a tremendously important lesson. I have heard so many liberals say that they only want to talk about ideology. They want to rely on the portrayal of judging as ideological, but then deny the President his choice of ideology. This doesn't work, and it shouldn't work. If we accept the foundation of the argument -- that judging is ideological -- then there is no trump to the President's appointment power when his party controls the Senate. Your unhappiness with the President's choice of ideology has one answer: Win elections. By declining to frame arguments in terms of legal analysis, the Democrats empowered the nominee to win by simply explaining a lot of legal arguments.
In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.
Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.
Several Democrats expressed frustration over what they saw as the Republicans outmaneuvering them by drawing attention to an episode Wednesday when Judge Alito's wife, Martha-Ann, began crying as her husband was being questioned. That evening, senior Democratic senate aides convened at the Dirksen Senate Office Building, stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation - as opposed to, for example, images of Senator Edward M. Kennedy, Democrat of Massachusetts, pressing Judge Alito about his membership in an alumni club that resisted affirmative action efforts.We'll never hear the end of the wife's crying. It's becoming mythic. If only that hadn't happened, we could have gotten some footing out of Kennedy badgering him about the alumni club. But the crying resonated because we experienced the questions as unfair and because we too were exasperated by what we could see was political posturing.
"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats' problems. "It got front-page attention. It was on every local news show."
Beyond that, Democrats said Judge Alito had turned out to be a more skillful witness than they had expected. They said Democrats on the Judiciary Committee had been outflanked in their efforts to pin down Judge Alito on any issues, and that some of the questioners - notably Senator Joseph R. Biden Jr., Democrat of Delaware - devoted more time to talking than to pressing the nominee for answers.
We hear a lot about the crying, but there is at least as much talk about how long the Senators spoke. They seemed to be making political speeches, which really was consistent with their own bad decision to portray judging as a political enterprise. If we'd believed that portrayal, their expressions of political preferences would have seemed quite relevant. But people aren't buying that portrayal, and they shouldn't. What judges do is different from what Senators do, and they need arguments that make sense as a criticism of judging.
"[W]hat has happened is that this has turned into a political campaign," [Senator Kennedy] said. "The whole process has become so politicized that I think the American people walk away more confused about the way these people stand."How are people confused? If it's political, the winners of the elections should prevail. If you want to say it's not political, then why did you portray it as political, throughout the hearings and as part of a strategy devised years ago at your retreat?
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२६ टिप्पण्या:
Your unhappiness with the President's choice of ideology has one answer: Win elections.
That's it in a nutshell. What's not to understand? Good summary.
As for the Kennedy sparring that got derailed...Between the two, Alito or Kennedy, which of them might be most vulnerable to lapses of judgement in their younger days? We're looking at a chifforobe compared with a walk-in closet.
The Crying episode did the Democrats a favor. If Kennedy's charges of elitism and racism has been more prominent, so would have the Republican response detailing Democratic hypocrisy, including Sen. Byrd and Kennedy's membership in the Owl Club.
When they aren't the damning 'but' party (the economy's doing well but. . ., the elections did well in Iraq but. . . ., etc., etc.) the Democrats seem to also be the 'if only' party (. . .if only she hadn't cried, . . . if only those damn Swift Vets never showed up, . . . if only those damn bloggers didn't question Rather's memo, etc., etc., etc.)
Not that the Republicans don't have their own problems (righteous indignation that too frequently morphs into hypocrisy for starters)
When stating that "the American people walk away more confused about the way these people stand", Kennedy reveals the underlying hostility that elitists have toward actual voters.
People couldn't possibly disagree with them on the merits of their arguments, Kennedy argues, so they must be confused, or even stupid, or the process rigged (e.g. claiming "Alito was coached").
Kennedy knows what's good for us, that teeming mass of unwashed plebeians, not allowed in his Owl club, who need need to be told what to do by our betters.
Kevin
This, I think, is indication that some Democrats, and most notably Senator Kennedy, are living in a fantasy world. I would think that probably the second worst Senator (after maybe Rockefeller) to be trying to make the argument that Judge Alito is an elitist would have been Kennedy. Talk about havving grown up with a gold spoon in one's mouth, Kennedy had one of the most elite, coddled, lives of anyone in the Senate, and for him to be suggesting elitism of anyone else is the height of hypocrisy - and I think that most in the country outside of MA know this.
Judge Alito is almost painfully middle class, as, obviously, is his wife. No pretensions there of being upper class. No designer outfits, expensive jewelry, etc. Just solid middle class. Ted Kennedy trying to show otherwise was just futile.
But even if Alito's wife had not been there, and had not cried, it wasn't going to work. All you had to do was read or listen to the testimony. No exclusive male eating clubs for the judge when he was at Princeton, etc. None of the stuff that traditionally went along with the elites attending Princeton. No, here was someone who got there on his own merits - a lot of hard work and brains. And, really, much too nerdy for being admitted to the elites at his alma mater.
I think that Kennedy can be excused for this, due to his well known alcoholism. But I don't see the rest of those backing him here having that excuse. When are they going to figure out that much of America doesn't buy people growing up with the ultimate of privilege claiming that anyone else is an elitist, etc. Just doesn't fly anymore.
I think too that the Democrats have finally figured out that they can no longer get away with claiming that the President's judicial nominees are out of the mainstream. What defines the mainstream? Law school profs? Democratic Senators? Or American voters?
The Republicans have controlled the White House for 25 of the last 37 years, and Congress for most of the last decade (the House for all, the Senate for a majority). It is not just that "to the victors go the spoils", but also that to the victors goes the definition of the mainstream.
In other words, how can what the Democrats like Kennedy portray as the mainstream be such, if those supporting it can't win elections nationally?
I think that Ann has a very good point here about ideology. If the debate is going to be about ideology instead of judicial temperment and legal skill, then the obvious question is what ideology should the nominees adhere to, and the inescapable answer seems to be that of the President.
How can Kennedy, et al., then keep a straight face when suggesting that a judicial nominee should adhere to their ideology, given that their ideology has lost both the presidency and the Senate?
I find it humorous that Senator Kennedy could think anything wrong about a judicial nominee being coached. And he wasn't? Kennedy surely didn't do even a fraction of the work behind his examination of Judge Alito. That is what staff is for. And Kennedy supposedly has one of the best for this sort of thing.
But the idea that Alito wouldn't be prepped for this is ludicrous. Important nominees have been coached for decades.
Yes, it is all a big game at one level. But the Democrats are as responsible, if not more so, for this than are the Republicans. Do they expect the Republicans to unilaterally disarm in this sort of contest?
Part of the game is to twist things a nominee says to portray him/her as being different from what he/she really is. And Senator Kennedy is one of the worst, as evidenced by his actions in this and many other nomination hearings. So why should the Republicans not prepare their nominees to face this sort of twisting of testimony?
Add to this that most of us, most likely including Judge Alito, haven't spent that much time being cross-examined in court. This public twisting of testimony is just not something that most are used to dealing with. And, so, just like we prep our witnesses for something akin to this, nominees too have to be prepped in the same way. BFD.
"..stunned at the realization that the pictures of a weeping Mrs. Alito were being broadcast across the nation.."
Stunned??!!
If it bleeds it leads...isn't this the way the media plays it, Iraq coverage being a prime example...
"Had she not cried, we would have won that day," said one Senate strategist involved in the hearings..."
Strategy, huh..... did the playbook fall into wrong hands?
I rather enjoyed the Republicans use of their time, saving for responses to the democrats line of questioning--A real master stroke was Lindsey Grahams use of his time to keep Shumer from showing up on the evening news feeds by talking until 6 PM.
I'm going to play devil's advocate a bit here and say that by the GOP Senators "protecting" Alito they were also failing in their duty to properly evaluate him. The interviews were a circus with both sides playing their roles and neither taking their true responsibilities seriously. It reminded me of the Senate hearings on Bill Clinton's impeachment - everyone knew how they were going to vote going into it and the whole process turned into a sham.
Perhaps the GOP felt obligated to play good cop to the Democrats bad cop, but blind partisanship is undesirable no matter which side you're on. I half expected Orrin Hatch to reach over and tousle Alito's hair the way he was sucking up.
Goat,
I Respectfully disagree. The hearings might have been at one time the place where Senators discerned the judicial philosphy of nominees, but that has been awhile. Now they are almost entirely politics.
Any Republican who was interested was given a chance to meet privately with Judge Alito, as were a lot of the Democrats. With the Democrats, it is likely that the judge was not totally forthcoming. But most likely, he was with the Republican Senators. Much more so than before the public in the hearings.
So, the Republicans know where Judge Alito sits on the issues important to each of them. And they are, by and large, comfortable with such. So, why shouldn't they be doing their best to combat the Democrats' spin and mischaracterization of nominees? The Democrats are playing politics with the nomination, and so are the Republicans. They are just on opposite sides.
I Respectfully disagree. The hearings might have been at one time the place where Senators discerned the judicial philosphy of nominees, but that has been awhile. Now they are almost entirely politics.
Basically this states the problem. You are right that the hearings are now entirely political and serve little purpose towards the stated goal of "advise and consent". I'm not comfortable though with the GOP saying "since the Democrats go overboard one way, we must go overboard the other". In doing so both sides fail. The GOP is saying "since the Democrats throw hardballs, we must throw softballs". Ethically I don't see the difference.
Make no mistake, I think Alito should be confirmed easily. It probably shouldn't have taken three hours to properly evaluate him let alone three days. What I'm saying is if you're going to have a hearing, have a legitimate hearing, not a melodrama.
Blaming the poor performance of the Democrats in getting their message across because Mrs. Alito cried shows the weakness of the message. The Senators need a servus, a slave who stood behind a Roman general or consul during his triumph reminding him that this adulation is temporary. They need someone to periodically remind them that merely getting the minutes in front of the camera is no substitute for having some engaging idea to state or argue to the American people.
""Had she not cried, we would have won that day."
Won what?!
This encapsulates the fatal weakness of their "strategy:" they strive to win all the insignificant little skirmishes while they throw away the war.
Robert,
As I see it, you are suggesting unilateral surrender by the Republicans. I saw no attempt at compromise on the part of the Senate Democrats during those hearings. What I saw, for the most part, was a constant attempt to mischaracterize both the judge and his record in the most demagogic terms often with little connection to the reality of his record or personal history.
So, you would seem to be suggesting that the Republicans compromise in view of this. From a negotiating point of view, this would seem to be counterproductive. If they came half way, when the Democrats were unwilling to budge an inch, as they gave every indication of being, then the new starting point for the Republicans would be half way between where they were and where the Democrats still are. And then, they can come half way again....
In the past, I think that many of them would have done so, out of comity. But after seeing the Democrats not give an inch, time after time, they have gotten smart, and don't unilaterally give up negotiating ground, as they shouldn't.
Remember, the American people voted the Republicans into a majority in the Senate and a second term of the Presidency, and not the Democrats. The people didn't do that so that they would unilaterally give up negotiating ground without anything in return to the party losing those elections.
Some Random thoughts:
1. The Rahm quote that demonstrates he is one of the clearest thinkers in the Dem party.
2. The crying quote from Dem staffers demonstrate that they still don't get it. Yes, the abuse of Alito was on par with the Army McCarthy hearings. If the view that network video of the wife crying was their only mistake, the Dem's are hopefully going to take that mythos forward with the same approach and mistakes.
3. The WaPo is my local paper and though a more than a bit left of my, I think that on the whole it's better balanced than the NYT and continues to only a lead over the NYT in realism and honesty.
4. If hearings continue in their current mode they are nearly useless except as a hurdle that will continue to prevent disasters like Ms Miers from making it to the bench.
I would be interested to know who Robert would have preferred as a compromise candidate - perhaps that nice, non-partisan fellow, Mr. Chereminsky? Or that dedicatedly apolitical and much-accomplished Lawrence Tribe, perhaps?
I think ideology matter a great deal; Ruth Bader Ginsburg was "well qualified", within the meaning commonly propounded, but this does not mean she should be on the Supreme Court, because I think the meaning of 'qualified" used by the Democrats is flawed. "Qualified" to the democrats means "agrees with is"; I don't see that a candidate who is not a textualist and by extension an originalist can be qualified to sit on the court, because the non-originalist view of what a Judge does - even in its most innocuous Bickell-esque form - is so far a departure from what a Judge should do that it is, in itself, disqualifying, no matter how many papers the nominee has written or years she has sat on an appeals court. Evaluated under this rubric, Tribe might well be far more distinguished as a scholar than was Clarence Thomas, but he was none-the-less not qualified to sit on the court, while Thomas very much was.
The hollowness - quite literally, in fact, as will be seen - of the Democrats' claims of "mainstream" credibility can be summed up in one of their slogans: "flyover country." When you look at a map - this is why the term "hollow" is so appropriate, it becomes redily apparent that when the Democrats dismiss "flyover country," they are dismissing practically the entirety of this country, absent the west coast, the northeastern coast, michigan and chicago. The opinions of flyover people aren't really of importance, and as their overlords fly high above them, looking down, in more ways than one, they will determine what is right and appropriate for those people; they will prescribe what is mainstream, on their way back to the coasts.
Lastly, I really think, occaisional snark aside, Dahlia Lithwick's op/ed last week should be required reading for Democrats. I think the hostility is not just a tawdry facade; I think that many Democrats, including all of those on the Judiciary committee, really do subscribe to the fictions demolished in Lithwick's piece. I understand the Dem view on the judiciary, and in many ways, I suppose its quite attractive (in the manner which beneavolent dictatorships often are), I just don't agree with it (a difficult concept for Teddy to grasp, I realize); part of the reason for the lack of comity is that I don't think Dems understand our judicial philosophy. They don't understand the principles that undergird it, they don't understand the purpose of it, and they don't even understand the terminology (thus, every single member of the committee who talked about the "unitary executive" demonstrated that they had no clue what the term meant).
I suppose I'll finish with a question for our Democratic friends who post here. Do you really think that what went wrong this week was that the strategy just didn't work this time, or do you think perhaps the strategy itself is wrong?
"Maybe you would have preferred Pat Robertson, as long as we are putting words in each others mouths."
Actually, I was overjoyed with the Alito nomination, since that was precisely who I wanted nominated to replace Justice O'Connor when she retired, and I was less than satisfied when Bush picked Roberts instead. Imagine my joy when - after the brief horror of the Miers nomination (which, it should never be forgotten, was as much an insult to the legal community of all political stripes as it would have been to the economics community for Bush to have nominated his personal CPA to replace Greenspan) - Alito was nominated. While I have in mind other people I would like to see for successive vacancies - Judge Sykes, Prof. Calabresi - there is literally no one who I would have preferred to Sam Alito.
I notice that you didn't answer the question, which I shall repeat again. Who would you have preferred as a compromise candidate?
The question is leading, of course, but only in the sense that it will demonstrate what you think to be a compromise, which is a valid question in light of other comments made above.
"Are you going to try to deny that this president has been a lot more right leaning than was his margin of victory* in either of the elections?"
He has governed (more-or-less, and when less, he has deferred left) in the manner he sought a mandate. He was given a mandate when he won the election. If you win an election, your first reponsibility is to the people who voted for you because you said you'd do something, not the people who declined. President Clinton rarely payed much heed to the close nature of his victories, and he certainly paid no heed to them in nominating Justices Ginsburg and Breyer, the relevant comparison here.
Ann, several times, in discussing your decision to vote for Bush in 2004, you argued that the only real power a president has is in foreign policy, and defense. But it's clear from your post here today that you're arguing that ideology, and domestic power in the form of appointing judicial seats, are just as much a factor in presidential power. Are you as comfortable with Bush's imprint on the judiciary as you were with what you believe to be his credentials on foreign policy and national defense?
Robert,
"I reviewed your initial comment and did not find any such query. Since you never originally asked it, I don't know how I can possibly answer its restatement."
If by my "initial comment", you mean my comment posted at 1:56 PM, January 15, 2006, you will find the original statement of the question on its first line: "I would be interested to know who Robert would have preferred as a compromise candidate." With due respect, you didn't review it very closely, and I notice you still haven't answered the question. So I'll restate it for a third time: you want a compromise candidate. Who would you have preferred Bush to nominate as a compromise candidate?
In case you're wondering, this does make you look evasive and as if you don't want to answer the question. The facts are indeed in print, the problem is that you not only aren't reading them, you're accusing me of doing precisely that. First rule of propaganda: accuse your opponent of doiung whatever it is you're doing.
Please consider actually replying to the question in your next comment, even if it's only to say "I don't know", which doesn't really help the debate any, but it's at least honest, while claiming I never asked the question in the first place is neither.
Robert,
"Here is the falacy that I was intending to expose. As I recall, the first responsibility of the president is to the Constitution. Maybe you and I just live in different Americas."
That's a very fair point. Touche. However, I would suggest that your complaint throughout this thread has not been that Bush has been in violation of the Constitution, but that he has failed to act in the spirit of bipartisanship you would prefer. So while you're correct, and I concede the point, I think it's of only secondary relevance.
In addition to my request that you name a nominee you would have preferred Bush to nominate, can I also ask if, had Ohio had gone the other way, you would have urged President Kerry to vote for that nominee? Or is your point that a "moderate" nominee for Kerry would be someone different - i.e. further to the left - than would be a "moderate" nominee for Bush?
"I would be interested to know who Robert would have preferred as a compromise candidate - perhaps that nice, non-partisan fellow, Mr. Chereminsky? Or that dedicatedly apolitical and much-accomplished Lawrence Tribe, perhaps?...a yes or no rhetorical question. Perhaps you didn’t review it very well."
Whether or not you liked the way it was phrases, it was, none-the-less a question, a question you have still yet to answer. Notice how, when you asked me who I would have preferred, I answered the question, fully and immediately. Perhaps you'd like to reciprocate?
Geoduck:
"What strategy? Last week's hearings were a bunch of rather disjointed questions from Democratic Senators. They did not prepare well enough to drill down on the legal questions."
By strategy, I mean, their overall approach to the nominations, measured in whatever terms they think most apt. Accepting that they couldn't simply decline to have these hearings, they must, surely, have come to certain conclusions as to their strategy for handling them: do we try to defeat the nomination? To damage it? To let it through? To use it as a stepping stone for the midterms? To use it as part of my bid for the Presidency (Biden, Schumer)?
Whatever the strategy was, whatever it attempted to accomplish and how, was it the right one that went wrong, or was it the wrong strategy that went as well as can be expected? That's the question I'm asking. I mean, surely you're not saying that, after so much noise and anticipation, they went in there without a strategy?
Robert,
" ...to quote your patron saint, 'words mean things.'"
Actually, the quote is that "[w]ords do have a limited range of meaning, and no interpretation that goes beyond that range is permissible", and I think it's a reasonable interpretation that the question I asked was meant to be answered.
Look, if you don't actaully know who you'd have preferred Bush to nominate, just say so. That's okay, it's fine to just make the rhetorical point that you'd have preferred someone "more moderate", without having any particular idea as to who. The only problem then is that it makes it hard to understand whether you're honestly asking for a moderate, or if you're simply grousing about the Alito choice, because without an example, or at least some honesty, it's difficult to tell what it is that you mean by a "moderate." I don't know what a "moderate" reading of the text is - halfway between what it says and what you'd like it to say? So we kind of need to know what it is that you think a "moderate" Judge is.
I will freely tell you exactly what I want in a judge. I frequently discuss at some length, right here at Althouse and in many other places, what I regard as the do and do not of the judicial role. So far, you've quibbled the prhasing of my question and thrown some insults in my direction, but you've not actually offered a substantive answer which might help further the debate.
As a semi-interested foreigner what I took from this hearng and especially from the NYT article is what a bunch of %pick expletive% self-important prats are in the US Senate. I'm not convinced that the republican senators are better but the democrats come across as a bunch of whiny losers, and given that as the first commenter said the key quote was the final "win elections" one, what comes across here is the quote earlier on whixh is that the democrats are in fact out of touch with the country and aren't going to win national elections for a while.
I have considerably more comments at my blog on this line
"Noam Chomsky. Are you happy?"
Certainly, insofar as - if you are serious - such a choice demonstrates that you are in no way interested in a "compromise" candidate; you simply don't like the Alito pick, and are attempting to minimize the effect of losing the last election. In effect, you show your contempt for the democratic process.
I'll read that previous comment from Robert as a concession of the point that his talk of "compromise" actually means "I hate George Bush and I want to slow down the implementation of the platform on which he was elected."
Robert, I know a few Brits who are self-described revolutionary socialists of one kind or another, and many of them are very intelligent and articulate. They do occaisionally fall back on the kind of specious rhetoric, but for the most part, they are perfectly happy to do precisely what you have gone to great lengths to avoid in this thread: to debate. One thing they never do, though, is hide their agenda behind language of "compromise." They have their agenda, they believe in it so strongly that they do not feel the need to hide it, and I promise you, if they won a majority - even a majority of literally one person - they would start to implement it.
As for assuming you're a democrat, I suppose that depends on whether you're smart or not. If you're a smart communist, I guess you'll compromise and vote democrat. If you aren't, I guess you'll self-marginalize by voting for, well, whoever. You no doubt assume that because I'm a Republican, I agree with everything in the GOP platform. I don't. That's not how politics works in this country.
In reality, we shouldn't fight; you and I are pretty similar in one way: we both have political beliefs shared by practically nobody else in this country. ;)
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