Scalito's Way
This morning Bush nominated judge Samuel Alito Jr. of the Third Circuit Court of Appeals to be the next associate justice of the Supreme Court. It was a shrewd pick (unlike his last one), a judge whose qualifications cannot seriously be questioned, but whose judicial philosophy is highly questionable.
Alito clearly passes the threshold "clerkship test" that I've described before, i.e., he's at least as intelligent and knowledgeable as the clerks that will be working for him. (Miers, in contract, would have been a clerk-driven mediocrity). Just because someone is qualified to sit on our highest Court, however, does not mean that he/she should be given an automatic pass. It's entirely proper for a senator to consider a nominee's judicial philosophy when deciding how to vote. Those who say otherwise are being disingenuous. To take an obvious example, no one would argue that a senator would be out of line for voting against a nominee who did not promise to uphold the constitution, no matter how stellar that nominee's qualifications were. And if that's true, there is no obvious place to draw the line. There's no hiding the fact that there is a significant range of opinion in this country as to how the constitution should be interpreted. We cannot expect senators to pretend that this division does not exist or is not important.
As I've written before, I believe that 'originalism' is a highly dubious method of constitutional interpretation. In fact, I think 'originalism' is more of a soundbite than a functioning judicial philosophy; it's an argument that is selectively deployed to justify particular judicial decisions, but ignored the rest of the time. Moreover, when originalist arguments are carried to their logical conclusion, they all too often lead to nearly universally unpalatable results (which is why self-proclaimed originalists so often depart from their own supposed philosophy).
Any senators who, like me, find Alito's judicial philosophy objectionable, should deny him their vote. The more difficult decision will be whether or not to mount a filibuster. I suspect that any such attempts will ultimately end in nuclear defeat. So the question is: would such a defeat hurt the Democrats politically or help them? That's a tough call, but my initial sense is that it would be more likely to hurt them. Bush still has three years left in his term, which is more than enough time for another spot to open up on the Court. The Democrats may wish to save the filibuster for just such an occasion. Moreover, in order for a defeated filibuster to help the Democrats politically, they'll have to convince a majority of Americans that Alito was worth the fight. That will be tough to do without appearing shrill and unreasonable. Bush may be at his lowest point now, but the Republicans and their media machine are still far better at raw politics than the Democrats, and they have a head start on this issue.
Ultimately, the better strategy may just be a unified and well-explained "no" vote. It gets the point across. It doesn't look obstructionist. And it preserves the filibuster for another day.
UPDATE: For a good run-down of what people are saying about Alito, check out these two posts by Michael Stickings (here and here).
Alito clearly passes the threshold "clerkship test" that I've described before, i.e., he's at least as intelligent and knowledgeable as the clerks that will be working for him. (Miers, in contract, would have been a clerk-driven mediocrity). Just because someone is qualified to sit on our highest Court, however, does not mean that he/she should be given an automatic pass. It's entirely proper for a senator to consider a nominee's judicial philosophy when deciding how to vote. Those who say otherwise are being disingenuous. To take an obvious example, no one would argue that a senator would be out of line for voting against a nominee who did not promise to uphold the constitution, no matter how stellar that nominee's qualifications were. And if that's true, there is no obvious place to draw the line. There's no hiding the fact that there is a significant range of opinion in this country as to how the constitution should be interpreted. We cannot expect senators to pretend that this division does not exist or is not important.
As I've written before, I believe that 'originalism' is a highly dubious method of constitutional interpretation. In fact, I think 'originalism' is more of a soundbite than a functioning judicial philosophy; it's an argument that is selectively deployed to justify particular judicial decisions, but ignored the rest of the time. Moreover, when originalist arguments are carried to their logical conclusion, they all too often lead to nearly universally unpalatable results (which is why self-proclaimed originalists so often depart from their own supposed philosophy).
Any senators who, like me, find Alito's judicial philosophy objectionable, should deny him their vote. The more difficult decision will be whether or not to mount a filibuster. I suspect that any such attempts will ultimately end in nuclear defeat. So the question is: would such a defeat hurt the Democrats politically or help them? That's a tough call, but my initial sense is that it would be more likely to hurt them. Bush still has three years left in his term, which is more than enough time for another spot to open up on the Court. The Democrats may wish to save the filibuster for just such an occasion. Moreover, in order for a defeated filibuster to help the Democrats politically, they'll have to convince a majority of Americans that Alito was worth the fight. That will be tough to do without appearing shrill and unreasonable. Bush may be at his lowest point now, but the Republicans and their media machine are still far better at raw politics than the Democrats, and they have a head start on this issue.
Ultimately, the better strategy may just be a unified and well-explained "no" vote. It gets the point across. It doesn't look obstructionist. And it preserves the filibuster for another day.
UPDATE: For a good run-down of what people are saying about Alito, check out these two posts by Michael Stickings (here and here).
posted by A.L. at 10:31 PM
2 Comments:
If the Dems don't filibuster here, what exactly would they be saving it for? For the next nominee (should there be an opportunity) that is even more ideologically opposed? Forgive me, but other than nominating James Dobson, that's going to be a pretty tall order. I, for one, am not yet qualified to properly evaluate Alioto's candidacy. But if I were, and I decided he weren't fit, why wouldn't I use the filibuster? If I remember correctly, the public was not particularly supportive of the "nuclear option", and as a Democrat, I would be eager to expose yet another instance of Republicans trying to further consolidate power, and squelch the minority view.
A fair point. The more important consideration is whether an attempted filibuster would help or hurt the democrats politically. I think you're right that the American public isn't too fond of the nuclear option. But then again, it depends on the context in which it is invoked. If the Dems are blocking what most people believe to be a reasonable nominee, the Republicans won't suffer politically from using the nuclear option. It all depends on how people come to perceive Alito.
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