There's an editorial at USA Today this morning (Bush picks another justice — and a fight over court's future
) that does a wonderful job illustrating all of the problems with the media coverage of the Supreme Court debate. USA Today has chosen sides, and doesn't even seem to understand it.
Neither of President Bush's first two Supreme Court nominees, John Roberts and Harriet Miers, gave conservative and liberal interest groups the ideological showdown they've long been spoiling for.
The liberal interest groups absolutely wanted a showdown over John Roberts. NARAL started with the dishonest ad
accusing Roberts of essentially supporting abortion-clinic bombers very early in the process. All of the Democrats on the judiciary committee tried to discredit Roberts. It wasn't possible - they tried to make a bogeyman out of him, and it didn't work. It remains astounding that an institution that could give Ruth Bader Ginsburg 96 votes for confirmation could only muster 78 for John Roberts.
But with Bush's selection Monday of federal appeals court Judge Samuel Alito, the battle is on. And it's shaping up to be as ugly as it is unavoidable.
On this one point, USA Today is correct. The battle is unavoidable, and it is bound to be ugly. As the Roberts battle was in many corners.
Conservative activists, who forced Bush to abandon Miers last week because she lacked the hard-right public record they wanted, were effusive in praise of Alito.
This is where they start to go through the looking-glass. There is some truth here, but just enough to mislead. Yes, there was great concern about Harriet Miers on the right, though most of it was not because she "lacked [a] hard-right public record" - the vast majority of the concern on the right was because of concerns about her qualifications. And it isn't only the political right that was concerned - all of the usual suspects on the left came out against Harriet Miers with their typical knee-jerk response to any Republican nominee.
Abortion-rights, women's rights and other groups declared the gauntlet thrown down and rushed into full counterattack.
There was no "attack" to counter - the "abortion-rights, women's rights and other groups" didn't rush into counterattack - they rushed in to attack. To attack Alito, to attack Bush, to attack conservative interest groups. All of the usual suspects generated all of the usual press releases, and the usual media played them in the usual fashion. As USA Today is doing here.
For Bush, under fire on several fronts and suffering the lowest poll ratings of his presidency, the nomination helped by calming one set of critics. But for observers like us, who prefer pragmatic nominees capable of drawing bipartisan support, it was a disappointing start.
Can we be honest here? This is nonsense. It is nonsense when Sen. Chuck Schumer goes to the floor of the Senate with it, and it's nonsense when the USA Today editorial staff repeats it. It's fantasy. There is no such thing as a "pragmatic nominee capable of drawing bipartisan support," at least not when there's a Republican in the White House. Such a beast just plain does not exist in this universe. (The closest you'll ever see to such is Harriet Miers, whose nomination drew bipartisan criticism...) Much like the abortion issue, on which the entire court system has become so politicized, there is a clash of absolutes in place, and it is not possible to find someone who will satisfy both sides.
The liberal position is that they want the courts to enact policy positions that they like. They want a court to issue a Roe v. Wade to remove the abortion debate from legislative oversight. They want a Lawrence v. Texas, to force states to repeal sodomy laws. They want liberal justices to be able to look at foreign law and find support for Roper v. Simmons, ruling the death penalty unconstitutional for minors. They want judges to impose Gay marriage, another position that can't win at the ballot box.
The conservative position is that either the Constitution means what it says, or it means nothing. Period. Lawrence v. Texas, Roe v. Wade, Roper v. Simmons are all bad decisions, not because the policy positions they establish are necessarily bad, but because the text of the Constitution does not support them.
There is no common ground between these two visions. So it is utter nonsense to complain that the President has nominated someone who is not a "pragmatic nominee capable of drawing bipartisan support" - there just is no such thing.
More so because Alito would make the Supreme Court even less diverse. If Alito replaces Sandra Day O'Connor, the court will be disproportionately white (eight of nine justices), male (eight) and Ivy League (eight). None of these characteristics should disqualify anyone, but the court and nation benefit from diversity in life experience and world view.
This is more of the same. Obviously, there is no reason to suggest that "diversity" would be a bad thing. But the law and the constitution say what they say. If the reading is being significantly influenced by the race or gender of the reader, that's a bad thing.
The more important question, though, is whether Alito fits within a legal mainstream, and that can be answered only after thorough vetting.
His credentials are sterling. But unlike other recent nominees, Alito has a long paper trail of judicial rulings, several of which raise questions about his respect for the rights of the individual.
Really? What decisions? What rights?
He has been a darling of anti-abortion activists because of his acceptance of restrictions that the Supreme Court has rejected, such as a Pennsylvania law requiring women to inform their husbands of abortions in advance.
Again, a dollop of truth ladled out to create a lie. Yes, he did dissent on one of the 5 sections of the Planned Parenthood v. Casey decision in 1992. Yes, the Supreme Court did rule against his position on that section. But, as has been clearly outlined elsewhere
, his dissent was based entirely on the precedents that the Supreme Court had established, and which they had to modify (by a 5-4 vote) to rule his dissent incorrect. They're using a half-truth in a pejorative fashion.
He has narrowly interpreted the applicability of federal anti-discrimination laws. And he has challenged Congress' authority to ban possession of machine guns, endearing him to Second Amendment absolutists.
In other words, he has followed the law and the Constitution, rather than his "personal policy preferences." Just a paragraph or so back, they were concerned that his decisions "raise questions about his respect for the rights of the individual." Now they're concerned about Congress' right to ban machine guns from individuals. Does that sound like a concern about judicial principles, or specific policy positions? The latter, obviously.
These and other issues will provide grist for the dueling, multimillion-dollar ad campaigns over control of the court, put in play by the retirement of O'Connor, who has been pivotal in dozens of hot-button cases.
If the past is any indicator, the truth will be bent into unrecognizable shapes in some of the advertising.
...and USA Today editorials...
That puts a great burden on the Senate Judiciary Committee. At Roberts' hearings, senators wasted time with speeches instead of questions — and failed to follow up when he responded with knowledgeable but evasive answers.
The committee and the full Senate must determine whether Alito is the judicial ideologue welcomed by his cheerleaders and feared by his critics. Or, whether he can be expected to show the respect for the court's precedents that served O'Connor — and the nation — so well.
Which court precedent was Harry Blackmun following when he wrote Roe v. Wade? Which precedent was Sandra Day O'Connor following on Planned Parenthood v. Casey? She wasn't even following her own - Judge Alito was!
The fact is, this editorial makes it clear - they're concerned not with precedent, but results. They want a justice to support liberal