Sunday, January 15, 2006

Sunday Reading

  • Why are conservatives afraid of having Judge Samuel Alito’s record evaluated and having him pronounced as a “conservative?”

    On Dec. 1, Knight Ridder’s Washington bureau sent a story analyzing the record of Judge Samuel Alito to our 32 daily newspapers and to the more than 300 papers that subscribe to the Knight Ridder/Tribune News Service. Written by Stephen Henderson, Knight Ridder’s Supreme Court correspondent, and Howard Mintz of the San Jose Mercury News, the story began:

    “During his 15 years on the federal bench, Supreme Court nominee Samuel Alito has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation’s laws.”

    Assisted by Washington bureau researcher Tish Wells, Henderson and Mintz spent nearly a month reading all of Alito’s 311 published opinions, which are available in a commercial database or in the archives of the 3rd U.S. Circuit Court of Appeals in Philadelphia, where Alito has sat for 15 years.

    Henderson and Mintz cataloged the cases by category — employment discrimination, criminal justice, immigration and so on — and analyzed each one with help from attorneys who participated on both sides of the cases and experts in those fields of law. They interviewed legal scholars and other judges, many of them admirers of Alito.

    They concluded that, “although Alito’s opinions are rarely written with obvious ideology, he’s seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business.”

    You might find this neither surprising nor controversial. Alito, after all, was nominated by a president who said that his ideal Supreme Court justices were Antonin Scalia and Clarence Thomas, the high court’s most reliably conservative members.

    You’d be wrong.

    Within days, the Senate Republican Conference circulated a lengthy memo headlined, “Knight Ridder Misrepresents Judge Alito’s 15-year record.”

    Then the long knives came out. The RNC and its minions attacked everything from the research to the reporters themselves, proving that swift-boating isn’t just for veterans after all.

    The RNC said Henderson “admitted he was previously an editorial writer,” as though that part of a distinguished reporter’s career was a secret that he’d been trying to hide. The RNC statement linked Henderson to editorials he didn’t write.

    This points up a couple of interesting trends. As always, people who don’t like seeing their favored people seen in the harsh light of objectivity — or even the attempt to demonstrate it — so they attack the messenger.

    This hysteria over a carefully researched article that documents the obvious — that Samuel Alito is a judicial conservative — is the latest example of a disturbing trend of attacking the messenger instead of debating difficult issues.

    Fact-based reporting is the lifeblood of a democracy. It gives people shared information on which to make political choices. But as people in new democracies risk their lives to gather such information, in this country fact-based reporting is under more relentless assault than at any time in my more than 40 years in Washington.

    On the radio, on the Internet, on cable television and in print, partisans on both sides attack any news reporting that fails to advance their agendas or confirm their biases. Zealous partisans in both major parties have adopted a “with us or against us” attitude. It’s not only unhealthy but also dangerous.

    Our job is to be neither with them nor against them. It’s to find out the facts, as best we can, and to report them as fully, fairly and accurately as we can.

    The other oddity is that the RNC is all up in arms that Alito would be labelled as a “conservative.” I thought they would be proud of having one of their own on the court. For years they have had no problem labelling any Democrat as a “liberal” to the point where some — not all, but some — are ashamed to be called such. Could it be that the record of people like George W. Bush, Tom DeLay, Karl Rove, Scooter Libby, Pat Robertson, Ralph Reed, Grover Norquist and the like are proud conservatives, they don’t want the country to know that Samuel Alito can be lumped in with them?

  • Have you heard the one about the cannibal who threw up his hands? That old joke came to mind when I read this story.

    Disheartened by the administration’s success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation’s judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.

    In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.

    That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.

    Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views – in particular a written record of opposition to abortion rights – appeared to be stirring little opposition.

    Republicans say that Mr. Bush, in making conservative judicial choices, has been doing precisely what he said he would do in both of his presidential campaigns. Indeed, they say, his re-election, and the election of a Republican Congress, meant that the choices reflected the views of much of the American public.

    The reason that there was such “little opposition” to Alito is because the Democrats inside the Beltway are, in terms familiar to those of us who’ve had to live with addicts, enablers. They make it easy for the addict to continue doing what they do, and they say they have no control over the behavior of someone else, even if it ruins their own life in the process. They throw up their hands as they watch their own destruction (hence the connection to the old joke).

    The other problem is that once again the Democrats are proving themselves to be past masters at being shocked and outraged but completely ineffectual at rallying any form of considered opposition. Certainly there is more to object to in the long record of Judge Alito’s past than his membership in a right-wing frat at Princeton or his Clintonian dodging of the definition of “settled law.” The Knight Ridder story above certainly shows that. But instead they pick at nits, ignore Judge Alito’s alliance with some of the more odious tenets of the Bush imperial presidency (see below) and let a bit of wiley melodrama wherein the supporting actress does a weepy exit completely deflate them. No wonder the Republicans think they can roll the Democrats on anything; they have yet to be proved wrong. Even “victories” such as the dismemberment of Bush’s Social Security reform came at the hands of outside lobbying by bloggers and citizens who actually had a stake in it beyond the elections. The Democratic leadership hitched a free ride on that wagon and claimed they were driving, but everyone else knew better. Until they really get their mojo together, either by design or by being dragged to recovery by people outside DC and inside the blogosphere, you can expect to see more stories like this one, and my advice is to pack plenty of barf-bags.

  • This New York Times editorial does what the Beltway Dems won’t do: call bullshit on the Imperial Presidency.

    You would think that Senators Carl Levin and John McCain would have learned by now that you cannot deal in good faith with a White House that does not act in good faith. Yet both men struck bargains intended to restore the rule of law to American prison camps. And President Bush tossed them aside at the first opportunity.

    Mr. Bush made a grand show of inviting Mr. McCain into the Oval Office last month to announce his support for a bill to require humane treatment of detainees at Guantánamo Bay and other prisons run by the American military and intelligence agencies. He seemed to have managed to get Vice President Dick Cheney to stop trying to kill the proposed Congressional ban on torture of prisoners.


    Mr. Bush, however, seems to see no limit to his imperial presidency. First, he issued a constitutionally ludicrous “signing statement” on the McCain bill. The message: Whatever Congress intended the law to say, he intended to ignore it on the pretext the commander in chief is above the law. That twisted reasoning is what led to the legalized torture policies, not to mention the domestic spying program.


    Both of the offensive theories at work here – that a president’s intent in signing a bill trumps the intent of Congress in writing it, and that a president can claim power without restriction or supervision by the courts or Congress – are pet theories of Judge Samuel Alito, the man Mr. Bush chose to tilt the Supreme Court to the right.

    The administration’s behavior shows how high and immediate the stakes are in the Alito nomination, and how urgent it is for Congress to curtail Mr. Bush’s expansion of power. Nothing in the national consensus to combat terrorism after 9/11 envisioned the unilateral rewriting of more than 200 years of tradition and law by one president embarked on an ideological crusade.

    It makes you wonder who’s done more damage to our country since 2001; the terrorists who are bent on destroying us, or the people who are sworn to protect us from them.