THE BUZZ inside the Beltway has increased to a discordant roar following the nomination of Judge Samuel Alito to the U.S. Supreme Court. Several criticisms have been raised pending the nomination and in its immediate wake about the type of nominee President Bush should have put forth. All of these talking points pertaining to the supposed prerequisites for a nominee are merely rhetorical straw men that deserve some deconstruction.
Some have laid claim that Bush should have nominated a justice that would unite the country. Sen. Chuck Schumer, D-NY, said, "It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us. This controversial nominee, who would make the court less diverse and far more conservative..." Since when is it the primary function of a Supreme Court nominee, or of any member of the judicial branch, to unify our nation? We all learned back in grade school that the purpose of the judicial branch is to interpret the Constitution, not promulgate an atmosphere of Kumbaya. In today's world, many citizens cannot even identify the vice president, let alone the next Supreme Court nominee. I doubt many people's view on whether they live in a "unified" country (whatever that is supposed to mean) would be determined by the judicial philosophy of a single individual.
Secondly, this notion, which Schumer alluded to, that Bush had to nominate someone in the image of Sandra Day O'Connor is unfounded and unprecedented. O'Connor's tenure signified a few things: the first female on the court, a moderate justice and a crucial swing voter.
While liberals would like to maintain the current balance of the court, nowhere is this desire set in stone as enforceable law. Bush is not required to replace a justice with his or her protégé or someone cut from the same philosophical cloth.He should not feel compelled to preserve the status quo for the sake of retaining a swing voter, which the court and the country has survived without in the past. The philosophical makeup of the court has fluctuated throughout history. This is not anything novel or groundbreaking; it is an insipid occurrence.
Rounding out the liberal message is the allegation that Bush is beholden to the right wing. Ralph Neas, president of the liberal People for the American Way, stated, "President Bush put the demands of his far-right political base above Americans' constitutional rights and legal protections..." Sen. Ted Kennedy, D-Mass., argued that Alito's nomination was one "based on weakness, not on strength" because Bush caved to the right wing.
While many prominent conservatives protested Harriet Miers' nomination and some Republican senators raised some questions about her credentials, Democrats did not sing her praises either. It's clear that the right wing bears most of the blame for bringing down Miers, but the Democrats didn't stop them. Neas himself contended that Miers' nomination "raises serious questions about whether [the president] has found a nominee who has the requisite qualifications and independence." Schumer stated earlier last week that Miers would not be confirmed with a majority of the votes "either in the Judiciary Committee or on the floor."
Now, a first glance at Bush's new nomination gives the impression that Alito is generally conservative, but this should not preempt a careful and fair consideration of his nomination. Judicial nominees have traditionally been accepted by the Senate on the basis of merit, not ideology. Alito was confirmed unanimously to the Third Circuit Court of Appeals in 1990 during George H.W. Bush's term. Despite the unanimous vote, Sen. Minority Leader Harry Reid, D-Nev., asserted on Monday that the "Senate needs to find out if the man replacing Miers is too radical for the American people."
Justice Ruth Bader Ginsburg advocated some radical views that were definitely out of the mainstream but was still confirmed with 96 votes in 1993. In her 1977 book "Sex Bias and the U.S. Code," Ginsburg championed sex-integration of fraternities and sororities, the lowering of the legal age of consensual sex to less than 12 years old and the unconstitutionality of laws banning bigamy and prostitution. She even doubted the legal basis for "Mother's Day and Father's Day as separate holidays."
This senatorial deference to merit changed at the beginning of the younger Bush's first term, when Democrats filibustered the first federal judicial nominee in U.S. history, with several others following. In total, Democrats filibustered 10 nominees during Bush's first term.
Hopefully, Alito will not suffer the same fate, and will be judged on his reputation and achievements. Alito possesses impressive credentials. According to the Federal Judicial Center Web site, he received his law degree from Yale and has previously served as an assistant U.S. attorney and U.S. attorney in New Jersey, and as assistant and deputy assistant to the U.S. solicitor general before his nomination to the Third Circuit. His nomination warrants an evenhanded examination of his record and intellectual capabilities, but not a politically motivated, ideologically driven bloodbath.
Whitney Blake is a Cavalier Daily associate editor. She can be reached at wblake@cavalierdaily.com.
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