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January 13, 2006
WaPo Exercises Relativity, Scolds Both Sides For Hearing

The Washington Post editorial board did what it usually does when the Democrats stage outrageous behavior -- find a way to scold Republicans in order to allow themselves to feel good about damning the Democrats as well. In today's unsigned editorial, the board knocks the Republicans for playing fatuous defense counsels while the Democrats engaged in scurrilous character attacks:

The hearings were less illuminating than one might have hoped. Democratic senators often seemed more interested in attacking the nominee -- sometimes scurrilously -- than in probing what sort of a justice he would be. Even when they tried, their questioning was often so ineffectual as to elicit little useful information. Republican senators, meanwhile, acted more as fatuous counsels for the defense than as sober evaluators of a nominee to serve on the Supreme Court. On both sides, pious, meandering speeches outnumbered thoughtful questions. And the nominee himself was careful, as most nominees are, not to give much away. The result is that Americans don't know all that much more about Judge Alito than they did before.

Still, the hearings provided some useful information. For starters, Judge Alito, though not as polished as Chief Justice John G. Roberts Jr., was fully versed in constitutional and statutory law. When President Bush nominated Harriet Miers, many commentators worried that under the glare of the hearings, she would not seem up to the job of a justice. Judge Alito's intellect and qualifications have never been the subject of similar controversy, and these hearings showed why. He is in command of the diverse subject matter with which federal courts deal, conversant in the details of his own decisions and knowledgeable about constitutional history. This may be a mere baseline qualification for confirmation, but it is an indispensable baseline.

This editorial begs a few points. First and foremost, the need for Republicans to present a defense for the nominee comes from the inability of the hearing process to allow the nominee to effectively defend himself. The only participant not given time to present counterarguments to charges raised in questioning is the nominee, who must literallly sit there and absorb whatever abuse the Senators wish to dole out. It hardly resembles any American process in justice; in fact, it more resembles a show trial in the grand tradition of Joseph Stalin than anything else, with the Democrats stumbling over themselves to play character assassin.

Under those circumstances, the Republican urge to present defenses to these charges -- scurrilous, as the Post manages to admit -- is quite understandable. It would also appear that the Republicans understand and accept the ethics rules about sitting or prospective jurists refraining from issuing opinions on matters likely to come before them in the future. Like the Democrats, they asked prior nominees about issues such as abortion. Unlike the Democrats, they did not hound the nominees about those issues, nor did they disparage them as evasive or dishonorable for failing to act unethically during testimony -- and they overwhelmingly confirmed those nominees both in committee and on the Senate floor.

The Post complains for most of the rest of the article about how useless the hearing proved, not getting answers to supposedly vital political and legal issues. The problem for the Post isn't the hearings but the expectations of their editorial board about what the hearings should provide. In fact, they should have been satisfied to learn exactly what they describe in the second sentence above: that Judge Alito has the temperament, ethics, qualifications, and grasp of the law necessary to perform the job for which the President nominated him. The consideration of politics got settled in November of 2004, when the people elected this President to nominate qualified candidates of his choice to the federal bench. Elections have consequences, something that Democrats and the Washington Post have not yet learned.

In years past, the Senate didn't even bother with confirmation hearings. Those only convened under extraordinary circumstances, even for Supreme Court nominations, usually when a real issue of lack of qualification arose. Byron White's hearing in the early 60s, one of the first regularly-planned confirmation hearings, took 15 minutes -- just an introduction to the Judiciary Committee and a review of his CV.

In the future, the Senate should either promulgate rules of order for this out-of-control character-assassination committee, parameters that allow the nominee to act within the ethical bounds of their profession while being able to defend him/herself from the McCarthyist attacks of any party, or it should bar public hearings for confirmations altogether. The sad spectacle of American jurists being required to sit on television, immobile and unreactive to the slanders of politicians whose own ethics make a mockery of their Inquisition, in order to just get a promotion, hardly reflects the values in which most Americans believe for their justice system.

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Posted by Ed Morrissey at January 13, 2006 4:56 AM

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First and foremost, the need for Republicans to present a defense for the nominee comes from the inability of the hearing process to allow the nominee to effectively defend himself. The only participant not given time to present counterarguments to cha... [Read More]

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