Senator Ted Kennedy (D-MA) did nearly all he could to derail the confirmations of John Roberts and Samuel Alito to the Supreme Court. Having lost those fights, Kennedy is still at it, as evidenced by this Washington Post op-ed alleging that both nominees misled the Senate Judiciary Committee and concealed their judicial philosophies during their respective hearings. This, Kennedy claims, shows that the judicial confirmation process is badly broken.
the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.Yet as my Bench Memos co-blogger Matthew Franck notes, Senator Kennedy misleads his readers through selective quotation and misrepresentation, taking words out of context and (in one instance) altering the language of a Supreme Court opinion to make his point.
If anything, Franck is too easy on Senator Kennedy, highlighting only a handful of his distortions. Setting aside the misquotation of Justice Thomas' Hamdan, Senator Kennedy's essay is exceedingly disingenuous. The hearings were a "sham" because some Republican Senators praised rather than probed the nominees, but not because some Democratic Senators prejudged the nominees, sought to play "gotcha" politics, played to the cameras, and asked misleading questions. Are we to believe that Senator Kennedy cared about the substantive answers to his questions?
Senator Kennedy accuses Justice Alito of a "pattern" of deception, including misleading the committee about his views of criminal procedure.
When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan, in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.Whatever one thinks of the merits in Hudson, it is hard to argue that the Scalia majority Alito joined was "contrary to almost a century of precedent." See, for instance, Orin Kerr's analysis here.
In other places, Kennedy combines distortions and disingenuousness at the same time.
In Gonzales v. Oregon, a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality."Here Kennedy misrepresents the substantive issue in the case, which concerned the interpretation of the Controlled Substances Act, not the scope of federal power under the Commerce Clause. While I disagreed with Justice Scalia's dissent, it was hardly "startling." What is "startling," however, is Senator Kennedy's suggestion that he now believes the federal commerce power is limited (and that such limits should be enforced in federal court).
Senator Kennedy is simply upset that President Bush nominated, and the Senate confirmed, two intelligent, conservative jurists. I don't agree with all of their legal opinions thus far, but it's hard to claim that either Roberts or Alito was unqualified or should not have been confirmed. I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases.
the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don’t share Senator Kennedy’s view that Senator Kennedy’s policy preferences should be enacted by the Supreme Court. What Kennedy doesn’t have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.
Related Posts (on one page):
- Kennedy Correction:
- Wittes on Reforming the Confirmation Process:
- Senator Kennedy Assails Alito and Roberts:
You're right about how screwed up the confirmation process is. Although I have little good to say about him, Senator Byrd made a truly statesmanlike speech in annoucning how he would vote on the Aluito nomination. He said the Dems were embarrassing in the way that they tried to derail the nomination through tricks and trivia, and castigated the Republicans for basically abdicating their obligation to actually ask serious questions of the nominee.
Ship Erect, why would it matter if the candidates gave answers on Roe v. Wade? The Senators already have their minds made up.
"[The Supreme Court] is the place where the rights and liberties of the American people are best protected." ~Edward Kennedy
God I wish Congress (or the lack of it) thought if itself in those terms.
I'd actually be interested in hearing their theories about how they'd overturn it if they so desired. Perhaps a senator could ask this of a pro-choice nominee. "I don't know and don't want to say" shouldn't be a valid response; they're going to be giving their opinions about cases for the rest of their lives, so clarity should be paramount.
And how can you state an opinion when you don't know what the specifics of the case are? There are no facts to discuss, no theories to debate. Judges don't form their opinions in a matter of seconds and shouldn't be forced to do so in front of grandstanding politicians.
Because they are supposed to answer truthfully?
* 25 years or age 75, whichever comes first
* 18 years with the nine positions' terms staggered, one up every two years
We all know that Alito just rubber stamps strip searches of ten year old girls and hates babies, minorities, and loves big corporations.
I guess talk about the scope of a warrant, etc, is just soooo boring.
The dissent in the Oregon case was very much a STARTLING view of "the Commerce Clause" and particularly the powers granted an Article II delegation so upon. While the dissent spectacularly missed the (correct) phrasing of the question before them, pretending that the dissent so focused is not required.
I suggest you re-read the case -- and the history of commerce clause doctrine. First, both the majority and dissent are focused on questions of administrative law (and, on those terms, the dissent is far more powerful -- even if wrong). Second, the commerce clause is only relevant in this case insofar as it should trigger various canons of construction and overcome Chevron deference. The majority hardly addresses the issue (likely because some of the justices were not comfrotable with resting the decision on such grounds), but the dissent does. Third, the Supreme Court long ago accepted that Congress could regulate articles of interstate commerce for the purpose of promoting public morality. Indeed, even the "Lochner court" accepted this fact. See, e.g., the Lottery Cases from 1903.
JHA
You may want to review the holdings of Cruzan and Glucksberg, and be at least a little bit charitable to Senator Kennedy's reading if you are going to criticize him for being deceptive or idiotic rather than just in disagreement wtih yourself.
Also, I'd note that you've granted a lot in your post to the validity of mine, despite your tone - and that you're ignoring the fact that the public focus (particularly in the media) on the dissent focuses on the question of whether or not the government had the power (under the commerce clause, not just under Chevron, and despite the 14th Amendment, which was also underdiscussed by the dissent - one could easily see how amongst the stated powers Kennedy used "commerce clause" as a placeholder) - not, as the majority properly noted the case to be - whether Congress intended to convey such power.
Neither Cruzan nor Glucksberg had anything to with the scope of the federal commerce power, nor does either support anything in Senator Kennedy's op-ed. Nor did either have anything to do with Gonzales v. Oregon.
Certainly many commentators wrote as if the Oregon case had something to do with the scope of federal power, but as a legal matter it did not. I expect a Senator on the Judiciary Committee to know this, and public misperceptions do not excuse his characterization of the dissent.
JHA
Pretentious waddle.
Judges have always been criticized for their decisions, sometimes very harshly, from all sides of the political spectrum. And spare me the claim that conservative criticism is based on "judicial philosophy" and somehow more principled than liberal criticism. The fact is people want certain outcomes, are unhappy when they don't get them, and look for any argument that comes handy.
This whole question of what murky shade of philosophy describes a judge may be of interest to a handful of law professors, but for practical purposes it means very little.
Call me pretentious, but I don't think it is in the least unreasonable to expect judges to enforce the laws as written and intended, rather than pursue certain policy objectives. Yes, of course, politicians and activists of all sorts want specific outcomes, but that doesn't mean that judges should agree to provide them.
Just think about it for a moment. If judges are really spokesmen for certain policies, then the written law means little to nothing. Is that the legal environment we all want to live in? It is not too much to ask judges to leave their policy preferences at the door, to the degree that they (or any person is able).
So, does Kennedy decry the entire system of hyperpartisianship that drives Supreme Court nominees to such slippery tactics? No! He contributes to it by singling out two nominees who are on the "wrong side" politically, and tossing his mud at them alone. (And "mud" it is-- misleading insinuations, irresponsible rhetoric, intentionally skewed misrepresentations of cases and decisions).
Want to know why no nominee in his right mind would answer forthrightly the questions posed in the Committee? Look no further than this hit piece by Sen. Kennedy. (And yes, both sides are guilty of this. But I don't remember a Republican member of the Judicial Committee writing similar op-eds about Justice Ginsberg, or Souter, or Kennedy, etc.)
My problem with your point of view is that it states an ideal that does not exist.
Laws and constitutions do contain ambiguities, and judges do interpret them, often, in accordance with their personal ideologies. That's not to say there is no difference between judges and legislators, but I think it is foolish to pretend the line is absolute.
The President certainly takes political ideology, and a judge's likely rulings, into account in making nominations. Why should the Senate disregard these factors?
As for that execreble op/ed, Kennedy basically says that only a nasty lying conservative would suggest that the court should defer to the expertise of the executive branch... except that only a nasty lying conservative would refuse to defer to the expertise of the executive branch. (Hamdan, Rapanos)
Of course, there are very different issues in those two cases... but you wouldn't know that from this op/ed, since Kennedy treats them both as wrong based solely on his preferred outcomes.
Your point is not clear to me. When I used the term "personal ideology" I was referring to political ideology. Political ideology manifests itself in policy preferences. So yes, I do think judges rule, not infrequently, on the basis of their policy preferences. This is especially true of Supreme Court Justices, by virtue of the type ofcases that reach them,
Look, assuming normal life expectancy, John Roberts is going to be Chief Justice for about 30 years. That's about as long as he's been old enough to drink. Given the power of that position, I don't see why any questioning remotely connected with the job ought to be off-limits.
You're claiming that the reasons nominees routinely lie is to spare Senators embarrassment?