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November 1, 2005
The Big Three On Alito

Four weeks ago, the editorial boards of three most influential liberal newspapers reviewed the Harriet Miers nomination to the Supreme Court with suspicion due to her lack of a track record on legal issues. Oddly, the LA Times came closest to mirroring the eventual conservative reaction while the New York Times and Washington Post took a more optimistic approach to the unusual choice, although all three wondered about the role that proximity played in Bush's selection.

Today, however, Bush's choice of a clearly conservative jurist with originalist approach has removed all of the suspicion and doubt from the editorialists' minds. Unsurprisingly, the most definite reaction comes from the NYT, where they decry the "lost opportunity" by picking a "white man" instead of the "wrong woman":

Whatever the answer, this nomination is yet another occasion to bemoan lost opportunities. Mr. Bush could have signaled that he was prepared to move on to a more expansive presidency by nominating a qualified moderate who could have garnered a nearly unanimous Senate vote rather than another party-line standoff. He could have sent a signal about his commitment to inclusiveness by demonstrating that he understood his error with Harriet Miers had been in picking the wrong woman, and that the answer did not have to be the seventh white man on the court. But he didn't, any more than he saw Sept. 11 as an opportunity to build a new, inclusive world order of civilized nations aligned against terrorism.

One might point out to the Gray Lady that the Bush administration has once again taken an issue on the latter point to the UNSC, which then watered down a resolution demanding Syria cooperate in a terrorist attack on a Lebanese politician to near-meaninglessness before passing it. After Syria rejected it today, only the NYT would assume that the Russians and Chinese would allow the world body to do anything meaningful -- which is exactly what happened when we demanded an end to the twelve-year Iraqi stalemate from the UNSC. The new world order that they envision coming from Turtle Bay doesn't exist, and won't ever exist, regardless of whether Bush is in office or not. The only way to build an inclusive world order where Russia and China hold vetos is to surrender to terrorism and consign the UNSC to passing resolutions congratulating itself on its ability to do nothing.

And what, exactly, does that have to do with a Supreme Court nomination? Well ... nothing. But the NY Times simply seems incapable of discussing anything without throwing in their tired disagreements with Bush's foreign policy. They conclude by even tossing Scooter Libby into the mix.

The Los Angeles Times stays a bit more on topic, but doesn't sound a much more hopeful tone. They do sound more grateful than the NYT for a clearly delineated fight this time, calling Alito the "anti-Miers" for his long and easily perused track record:

Alito's hearings will mark a return to form for Washington. Most of the time that's bad news, but hearings for Supreme Court nominees have become such comical spectacles that they turn the conventional wisdom on its head. So long as it's about legitimate issues, some good old-fashioned partisanship may be just what the judge ordered. ...

Now all is right with the world. Liberal interest groups and Democratic senators are criticizing the president's choice, and his allies are defending it. The battle lines are drawn, and they are familiar. Of course, this is no assurance that the coming fight will be edifying. But better to debate judicial philosophy and constitutional interpretation than executive privilege or Senate procedure. Even those opposed to Alito's nomination can be grateful for that.

Gratitude aside, partisanship comes as a symptom of what ails the court in the first place -- and why the appointment of originalists has become so necessary. In the true mold of the Constitution, politics would play little role in confirming jurists, and a man or woman with Alito's experience would hardly get any remarks when promoted to the Supreme Court. Only because the Court in recent decades has arrogated legislative powers to itself does partisan politics now play a role in getting nominees confirmed. The very demands that Democrats place on these nominees demonstrates the corrupt outlook previous courts have taken with the Constitution, and why jurists like Alito and Roberts provide the only antidote.

The Washington Post, as it did with Miers, takes the most reasonable tone, although it does take a well-deserved swipe at President Bush for the Miers nomination:

IT WAS ONLY a few days ago that President Bush was touting Harriet Miers as a pioneering woman whose lack of experience as a judge was a selling point for service on the Supreme Court. Yesterday he responded to the implosion of her nomination with a return to basics: a highly qualified nominee who adds no diversity to the court but whose reputed conservatism greatly excites the president's base -- and greatly offends the opposition party. Indeed, as soon as the White House proposed Judge Samuel Alito's elevation to the Supreme Court, the battle that both sides have been anticipating since the president took office began. Reports and statements praising or denouncing the nominee whizzed around town. Everyone, it seems, had a judgment at the ready. We await a thorough and serious confirmation process before venturing ours. ...

One thing that is clear from a cursory review of Judge Alito's work is that he is not a bomb-thrower but rather a judge who is careful -- even in dissent -- to be respectful of his colleagues' work. His opinions probably don't contain the sort of flamboyant statements that can become defining sound bites in a bruising confirmation battle. Evaluating Judge Alito will necessarily be a more subtle project than assessing some of the judges President Bush has nominated to lower courts.

The Post has decided to play it safe this time around. Its editorial remains fairly neutral, pointing out Alito's experience and advising partisans to keep their powder dry until the hearings. That won't happen, nor should it; Alito's record speaks for itself, and people have the right to debate it now if they wish. For their part, the Senators should focus on those qualifications instead of Alito's politics, just as they did with Stephen Breyer and Ruth Bader Ginsberg, and allow the elected President to seat the well-qualified nominee of his choice. None of the three mention that Alito won unanimous approval from Democratic-controlled Senates to his last two positions, and that nothing he's done in the fifteen years since has done anything but add to his resume and qualifications to rise to the Supreme Court.

That may be the most germane point of all -- and it's telling that all three completely ignored it.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at November 1, 2005 6:16 AM

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