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January 16, 2006
The Subtext Of The Alito Hearings

Both the New York Times and Washington Post attempt to capture the subtext of the Alito confirmation hearings, with the former trying to tackle the question seriously and the Post taking a more playful attitude with the question. The New York Times's analysis concludes that the dubious spectacle has created much more room for debate on the legal status of abortion than either side thought possible after the 2004 election:

Just a little over a year ago, senators of both parties said publicly that it would be almost impossible for a Supreme Court nominee who disagreed openly with the major abortion rights precedents to win confirmation. ...

The shift in the politics of the abortion rights issue was clear early in the hearings. On the first day of questioning, when the parties laid out their arguments and public opinion began to form, only two Democratic senators, Ms. Feinstein and Charles E. Schumer of New York, made abortion rights a central focus.

Senator Patrick J. Leahy of Vermont, the ranking Democrat, and Senator Edward M. Kennedy of Massachusetts, the senior member and liberal stalwart, aimed their questions primarily at other issues like presidential and executive power. And when they later returned more fully to abortion rights, they often talked more euphemistically of a right to privacy.

Republicans, in contrast, appeared to relish bringing up the subject. In the first round, the chairman of the committee, Senator Arlen Specter, Republican of Pennsylvania and a supporter of abortion rights, called abortion the "dominant issue" of the hearings. Several Republican opponents of abortion rights - Senators Jeff Sessions of Alabama, Sam Brownback of Kansas, Tom Coburn of Oklahoma, Lindsey Graham of South Carolina and Mike DeWine of Ohio - dwelled on the prospect of overturning abortion rights decisions.

In an interview on Sunday, Mr. Brownback said he was heartened by the hearings. He argued that in the 2004 elections, Republicans had showed Democrats that "we can run on abortion rights and win the public," adding, "they are trimming their sails some on it."

An offhand remark by Arlen Specter just after the election that he intended as friendly advice to the President not to send obviously pro-life candidates to fill Supreme Court nominations reflected the conventional wisdom -- that the American electorate would consider such a nominee as too radical for confirmation. However, the American electorate has swung towards a considerably pro-life position, and furthermore, more and more people now believe that the issue should still be open for debate and decision in the legislature, not the federal bench. Specter nearly lost his chairmanship after giving that "advice", especially since the White House had decided to back Specter over a more conservative primary challenger who gave Specter a tough run.

The debate over abortion has never gone away, and as science teaches us more about embryonic development, the question of killing a foetus for the convenience of the mother becomes more and more complicated. The electorate has the sense that Roe stole the ability of the people to make their own decision about policy regarding abortion and created an unresolvable political impasse as a result. The usurpation of authority that the Court committed also poisoned its role in America's governing system, with the current poisonous tone for Supreme Cout and federal appellate bench confirmation hearings resulting from that point.

If anything, the Alito hearings show that the issue of abortion has become an albatross around the necks of Democrats.

The Post's Dana Milbank takes a lighter look at the hearings by asking their resident computer guru to review the transcript and count words and phrases from the testimony. In three paragraphs, Milbank points out exactly why the hearings became such a farce and a hysterical witch-hunt, demeaning the Senate much more than the attempted smear campaingn could ever have hurt the candidate himself:

By the numbers, Judge Alito's language was painfully cautious. He mentioned " stare decisis " -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times).

The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.

The senators spent less time in the legal gobbledygook and more time scoring political points. Democrats mentioned "Vanguard," a reference to a conflict-of-interest for Alito, 68 times. They invoked Roe 59 times, and "CAP," a controversial group Alito joined, 29 times. "Above the law" came up a dozen times, and "the unitary executive" -- an extreme view of presidential power -- 14 times.

If nothing else does, this proves that the Democrats had no intention of allowing the candidate to get consideration based on the merits of his qualifications. They put much more effort into muckraking than asking substantive questions regarding his job qualification and judicial track record. It was a pathetic, shameful performance that will and should take the Democrats years for atonement.

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Posted by Ed Morrissey at January 16, 2006 6:04 AM

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