Monday, January 30, 2006

Alito Confirmation a Tribute to Gang of 14's Compromise on Judicial Filibusters

No matter what your ideology, the Senate cloture vote on the nomination of Samuel Alito to be an Associate Justice on the Supreme Court must come as good news.

It was a vote for civil debate over judicial nominations after decades of ideological warfare and character assassination.

By this vote, the Senate has upheld the traditional view that the philosophical orientations of judges nominated by the White House are decided when Americans elect their presidents.

The job of the Senate then is to decide not how a judge might rule in future cases but whether they're qualified jurists without taint of ethical or legal problems or some concealed radicalism.

But Alito's impending confirmation is attributable more than anything else to the Gang of Fourteen's compromise on judicial filibusters hammered out last May. In their deal, the senators all agreed that, barring "extraordinary circumstances," they would disallow a filibuster against any judicial nominee.

Their agreement has so far resulted in the successful confirmation of three controversial conservative lower court judges, along with newly-minted Chief Justice John Roberts and the soon-to-be-sworn-in Alito. Perhaps only Roberts would have been confirmed absent the Gang's agreement.

There is no way that President Bush could have gotten his way on those five nominations without the deal worked out by seven Republican and seven Democratic senators.

Like all the best legislative compromises in history, this deal required a canny combination of political shrewdness and enlightened concession to make it work.

I believe--and believed when the compromise was first forged--that Republicans were the biggest winners in the process, ensuring as they did that President Bush's conservative jurists would be confirmed.

But Democratic participants in the Gang of Fourteen deal also helped their own party, by presenting Democrats in the Senate with an opportunity to repudiate the futile ideological obstructionism that has given their party such a black eye in the past.

Senators from both parties also each showed respect for the history of the Senate, preserving the filibuster as a legislative maneuver unencumbered by the threat of the so-called "nuclear option." (As much as you may hate the filibuster and as often it has been used in the past by those attempting to obstruct national progress, particularly in the area of civil rights, director Frank Capra showed us how it can be used as tool for good in his film classic, Mr. Smith Goes to Washington.)

I first wrote about the need for a compromise on judicial filibustering eleven days before the Gang's deal was brokered and welcomed it when it came enthusiastically!

I hope that tonight, the President called every member of the Gang to thank them personally for ensuring that his nominees for the Court have had the fairest treatment since the Ford Administration.

Past Posts on This Subject:
Impending Compromise on Filibuster of Judicial Nominations (May 12, 2005)
Good To See Compromise on Judicial Nominations (May 23, 2005)
Bainbridge Has Good Insights into Filibuster Compromise (May 25, 2005)
Just My Opinion (May 31, 2005)
"I've Been Nominated for Membership in the National Geo...I Mean, the Coalition of the Chillin'" (June 2, 2005)

9 comments:

Deborah White said...

Mark, honestly, would you feel equally enthused about this democratic process if Democrats were in charge of the Senate, and the nominee had been a well-qualified but politically liberal jurist?

Pooh said...

I think Mark's comments, while well considered (and certainly agreeable), show just what a poor job the Judiciary comittee did in demonstrating to the public that this might be one of those 'exceptional circumstances' justifying a filibuster.

I have grave concerns re:Alito, but then I'm a lawyer, so it is more obvious to me in what ways Alito's jurisprudence is decidedly non-mainstream, then it is likely to be to a lay observer - and communicating those concerns to a lay audience is exactly where the hearings failed.

Mark Daniels said...

Deborah and PooH;
Thanks for your comments.

Yes, I think I would be equally happy about a Democratic nominee who was judged on her or his merits as a jurist, rather than on ideological grounds. I felt that way about Ruth Bader Ginsberg's confirmation, for example. This is a position I've held for a long time, even back when I was a Democrat.

Pooh, obviously I'm not a lawyer. So, I can't really respond to what you're saying.

In none of this am I saying that Alito would be my nominee if I were president. I just feel that we should expect presidents to nominate persons to the Court who are broadly sympathetic to their own philosophies. If we want to change who gets nominated for the Court, we need to change who gets elected to the White House.

Mark

Deborah White said...

I am genuinely saddened over Judge Alito's confirmation to be on the Supreme Court, but would not have supported a filibuster, either.

This is the result of Republicans winning, and Democrats losing, senatorial and the presidential elections in 2004. And that is the democratic process.

Alito was neither an unqualifed nor unreasonable choice, and he seems to be a superbly decent man. Thus, to use a filibuster would be to disrespect our democracy. American voters spoke clearly, and this is their will.

I think I'm disappointed in Democratic leadership for their pitiful communication of a vital party message.

Pooh said...

Mark (and Deborah),

Sorry if you felt like I was high-hatting you, my point was that the Senators failed woefully at the confirmation hearings to draw out the areas in which Alito does indeed represent 'an unreasonable choice' in a way a non lawgeek could digest.

For example, a cheap, but not too far off-base, point is that the 'unitary executive' theory, which Alito has championed, approaches 'elected king' status in wartime.

I completely agree that elections = judges, but deference does not equal abdication of exercise of judgment. Ah well.

Mostly, I'm frustrated by the Democratic hierarchy's performance in all 3 nominations. Roberts should have been overwhelmingly confirmed but I would have liked the hearings to be a bit more substantive and a bit less about Chuck Schumer's film tastes. I was disappointed in some of the more machiavellian responses from the left to Miers (confirm her because she is unqualified. Bah.) And I could write a book about the missteps during the Alito saga.

I'd also like to add that drawing a parallel to Ginsburg is factually off, as she was hardly the most liberal nominee Clinton had in mind - he went to Orrin Hatch and asked who would have an easy confirmation. And she still answered tougher questions more directly at the hearing (before being overwhelmingly confirmed, to be sure).

Sorry for the ramble :)

Mark Daniels said...

Deborah:
Your political transformation was the opposite of my own: I moved from moderate Dem to moderate Republican. I appreciate your comments here.

Pooh:
I didn't feel "high-hatted" at all. I'm always willing to learn from and defer to those who know more than I do...and that's the majority of the human race!

Thanks for the perspective on RBG's nomination. Interestingly, of course, Bush approached Harry Reid about the Miers' nomination, but the GOP didn't go for that.

Mark

AndrewRWood said...

Dude! No offense but how in the world can you be for an Alito nomination? He is not a good guy. He consistently rules for big business and government over ordinary citizens, and believes in the unitary executive (not to mention being part of a racist and sexist group at Princeton). With Bush spying on Americans without warrants, holding people without justification in illegal prisons around the world, torturing them, and going to war in Iraq without justification, does he really need any more power? What the Supreme Court needs is someone who believes in the constitution...someone who believes in the balance of powers. It scares me that he is going to be confirmed. Where is this country going?

Deborah White said...

I wholeheartedly agree with you, free2rocknroll. It's difficult to grasp why people would support this jurist and still profess to love the US Constitution.

Mark Daniels said...

Free and Deborah:
First of all, I don't so much support Alito as I do the traditional notion that barring some egregiously un-American philosophy or ethical issues, all presidents, no matter their party, should get their nominations to the Court confirmed.

Secondly, I don't think that the dire allegations made against Alito by people like Kennedy, Schumer, and Kerry held much water. The Princeton was a total straw man, for example.

Do I think that I will agree with Alito on everything he says as a jurist? No. But to me, that's beside the point.

Mark