TODAY the Senate Judiciary Committee is scheduled to vote on the nomination of Judge Samuel Alito to the Supreme Court, bringing a formal end to contentious committee hearings. At one point during the hearings, a wayward northern bottlenose whale swam up the Potomac and beached itself in the committee room. The whale, calling itself "Sen. Ted Kennedy," bloviated endlessly, which many observers took to be signaling a desire to return to the waters outside Chappaquiddick.
During the hearings, Kennedy's "questions," in which he talked much more than the nominee, ranged from ridiculous to just plain weird. Kennedy spent an entire session grilling Alito about an anti-affirmative action editorial that appeared in the newsletter of a club in which Alito was a member, Concerned Alumni of Princeton. After Kennedy struggled to read parts of the article out loud, Alito fully disavowed everything the editorial said, asserting that he did not know the club held those views and he would have never supported it if he did.
It's interesting that in over 15 years on the bench with hundreds of decisions to his name, the most damning thing Kennedy can find against Alito is an editorial written by someone he never knew from an alumni club. It should signal that Alito is a highly qualified, impartial jurist, which is exactly what Democrats are afraid of. Alito has recieved the highest rating from the American Bar Association, and he was impressive enough to be confirmed unanimously the first time he came up in the Senate for confirmation to federal appeals court.
Predictably, Kennedy's criticisms have the effect of making Alito look more impressive. In a speech from last Thursday, Kennedy railed against a comment Alito made over 20 years ago, when he said "I believe very strongly ... in the supremacy of the elected branches of government." What Alito meant was that the elected branches of government should be the only branches making new law. The judiciary's only job should be to interpret that law in the context of the Constitution. The problem for leftists like Kennedy is that the judiciary is the only place left where they can still make law. Especially in Kennedy's home state of Massachusetts, unelected liberal courts have a habit of preempting democracy to dictate law with almost no checks or balances except the extremely high bar of a constitutional amendment.
The danger of unchecked judicial power is clear in the 33rd anniversary ofRoe v. Wade, which passed this Sunday. The biggest problem with the ruling was not that it legalized abortion, but how it legalized abortion. The Economist points out that nations in Europe that legalized abortion by legislation suffer from none of the same culture wars afflicting America -- the kind of war that turns a confirmation hearing into a nasty political circus. In America, by contrast, the public was shut out from the healthy democratic discourse that should have decided such an important issue.
Elected branches of government should be superior to the judiciary because at least in theory, when elected officials screw up, the voters can send them home. Critics of an out-of-control judiciary have to wait for them to either die, get tired or be overruled through the difficult process of a constitutional amendment. A judiciary allowed to dictate policy is no different from a dictatorship. That's why it's important to choose judges who will leave the law making to lawmakers, as most people assume future Justice Alito will.
Democratic senators railed against Alito for not telling them how he will vote on future cases involving abortion. But a truly impartial judge knows that each case comes with its individual circumstances and thus approaches each case with an open mind, which Alito has promised to do. Alito's reluctance to hint any further on how he could rule shows the makings of a superior justice. On the other hand, the Democrats' brutal grilling, which eventually brought Alito's wife to tears, shows again that Kennedy is still better at driving women over the edge than he is at being a competent senator.
Herb Ladley is a Cavalier Daily associate editor. He can be reached at hladley@cavalierdaily.com.
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